### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-12-00838- CV

In re Jeffrey (Tre ) K rueger

ORI GINAL P ROCEEDI NG F ROM TRAVIS CO UNTY

M E M O R A N D U M O P I N I O N

Relator J eff

rey (Tre ) Krue ger wa s fo und in contempt of court for violating a temporar y injunction and was committed to jail for 125 d ay s. During his confine ment, Krue g er filed a p etition for writ of habea s corpus and an emer g ency motion to set bond pending this
Court’s deter

minati on of the merits of the petition. We g rante d the emer g ency motion, order ed
Krue g er rele ased upon the posting of bond, and reque sted a response from the rea l parties in interest, Michae l Torre s and Cru Energ y , I nc. (Cru Energ y ). A response was subs eq u ently filed. Having considere d t h e p et ition and response, we conclude that Krue g er is entitled to relief

. Acc ording ly , we will g rant the pe tition for writ of habe as cor pus.

BACK GR OUND
Krue g er and Torre s are opposing parties in ong oing litigation involving Cru Energ y ,

a company that they co-f

ounded. I n the underly

ing suit, Krue g er sued Torre s for brea ch of fiduciar y duty , fra ud, conver sion, and other theories of reco v er y . Torre s filed an answe r and counter claim
in which he made simil ar all ega t ions ag ainst Krue g er. During the course of the litigation, Torre ssoug ht and obtained a temporar y restra ining order and t wo temporar y injunctions ag ainst
Krue g er. The temporary restra ining order, which was entered on J une 14, 2011, and ex t en d ed by
ag ree ment on J uly 27, 2011, prohibite d Kr u eger from, among other things, “making or initiating
any withdrawa l s o r t ransf ers from the Wells Fa

rg o Acc ount (as define d in Plaintiffs’ Orig inal Petition), excluding transfers to be made in the ordinary course of busi ness of Cru Energy .” The 1
f irst temporar

y injunction, which was enter ed on J uly 5, 2011, and repla ced the temporar y restra ining order , prohibited Krue g er f rom:
(1) scheduling or providing notice of or conducting a shar eholder ’s meeting ;

The “ Wells Farg o Acc ount” is descr ibed in Krue g er’ s petition as follows: 1
The Boa rd authorized a chec king/ba nking acc ount for CRU Energ y with Wells Fa rg o Ba nk (the “Wells Fa

rg o Acc o u n t ”)

. The Boa rd resolution authorizing the Wells Fa rg o Acc ount provides that M r. Krue g er and Mr. Torre s would both be authorized signatories on the Wells Far g o Acc ount. Although no identify ing acc ount numbe r was provided in the petition, the “Wells Farg o Acc ount” was ref ere nced multipl e times in the petition and formed the basis for Krue g er’ s conver sion theory ag ainst Torre s. Krueg er ple d,
On or about October 1, 2010, Mr. Krue g er attempted to elec tronically ac ce s s the Wells F arg o Acc ount. Mr. Krue g er was able to view the Wells F arg o Acc ount, but was unable to conduct any transac tions in it. When Mr. Krueg er asked Mr. Torre s about his inability to ac ce s s the Wells Fa rg o Acc ount, he informed Mr. Krue g er that he had Mr. Krue g er’ s signa ture authority on the Wells Fa rg o Acc ount revoke d. Mr. Torres s aid t hat he believed having too many persons with ac cess to the Wells Fa rg o Acc ount wa s not consistent with how he wanted to handle CRU Energ y ’s acc ounting f

unctions.

2(2) making or initiating any withdrawa ls or transfe rs from any of Cru E n er gy , I nc. bank acc ounts, including, but not limit ed to, the Wells Fa rg o Acc ount as define d in Plainti ffs’ O rig inal Petition; (3) disposing of, selling or encumbe ring the share s or any assets of Cru Energ y , I nc. to which Jeffre y

Krue g er c laims ownership; (4) re m o v i n g, d es t ro y i n g, or otherwise m ak i n g u n av ai l ab l e an y wr i t t en information or documents rela ted to the activities of any of Cru Energ y , I nc.’s employ ees, ag ents, contra ctors, prospec tive or actua l investors, customers or g overnme ntal ag encie s and it s em p l o y ees, or any other person who m ay be direc tly or indirectly involved with the aff airs or business of Cru Energ y , I nc.; (5) contac ting an y of Cru Energ y I nc.’s investors or potential investors, or any other persons doing business with or potentially a participa nt in the business of Cru Ener g y , I nc., except as spe cifica lly authorized by

Michae l Torre s.

The second temporar

y injunction, whic h was enter ed on J uly 15, 2011 and purports to supplement the first temporar

y injunction, further order ed Krue g er to “[r]eturn $80,000 to the Cru Energ y bank

acc ount n u m b er 7 0 3 8 038340 to said acc ount no later than J uly 18, 2011,” to “[r]efrain and desist from deny

ing or restric ting Michae l Torre s’ acc ess to all money in Cru Energ y , I nc.’s bank acc ount number 7038038340 or any other acc ount in the name of Cru Energ y , I nc. at Wells Fa rg o Ba nk for usual and customary purposes of Cru Energ y , I nc.,” and to “[r]efrain and desist from deny ing or restric ting Michae l Torrr es’ acc ess to or control over the Cru Energ y , I nc. Website reg istered in the
company ’s name . . . .”

On J anuar

y 18, 20 1 2 , Krueg er filed for Chapter 7 Ba nkruptcy in the United States
Ba nkruptcy Court for the Norther n District of Texas. Subsequently , Cru Energ y filed a motion for relief from t h e au t o m ati c st ay , and the bankruptc y court modi fied the stay to allow C ru Energ y to pursue criminal contem p t ch arge s ag ainst Krue g er relating to his obliga tions under the temporar y

3order s. On September 6, 2012, following a hear ing, Krue g er was held in contempt for violating the

temporar y restra ining order by making three cash withdrawa ls on J une 17, 2011, totaling $3,091.21, from the Wells Fa

rg o Acc ount ref

ere nced in the order

. Krue g er was subsequently committed to the Travis County

J ail for thre e conse cutive day s. I n November 2012, Cru Energ y pursued additional contempt char g es ag ai n s t K r u e g er rela ting to alleg ed violations of the first temporar y injunction. Cru Energ y alleg ed that Krue g er had violated the injunction by failing to c ease and desist f rom either direc tly or indirectly “making

o r i n itiating any withdrawa ls or transfe rs from any of Cru Energ y , I nc. bank acc ounts, incl u d i n g, but not limit ed to, the Wells Fa rg o Acc ount as define d in Plaintiffs’ Orig inal Petition.” Specifica lly ,

acc ording to Cru Energ y , Krue g er admitted that he had “held $80,000 in trust for Cru Energ y , I nc.” and that he had “withdre w and transfe rre d all of that money in separate violations of the Tempora ry I njunction.”
Cru Energ y also alleg ed that Krue g er had furt h er v i o lated the injunction by failing
to cea se and desist from either direc tly or indirectly “conta cting any of Cru Energ y I nc.’s investors

or potential investors, or any other persons doing business with or potentially a participa nt in the business of Cru Energ y , I nc., except as specific ally authorized by Michae l T orre s.” Acc ording
to Cru Energ y , Krue g er had contac ted “multiple investors, vendors, and p o t en tial contra ctors and employ ees of Cru Energ y .” These alleg ed contac ts “includ[e d ] b u t [ we re] not limit ed to”: (1) sending an email to several i n v es tors and potential contra ctors and employ ees of Cru Energ y ; (2) contac ting and ultimately contra cting with DSL , a vendor of Cru En er gy ; (3 ) contac ting on multipl e occ asions Pablo Cortez and Robert C ook, both of whom wer e employ ees of Cru Energ y ;

4(4) contacting an em p l o y ee of S eva Energ ie, a vendor of Cru Energ y ; and (5) sending an email to

Dr. Patrick H ay es, “a

n investor and potential ve ndor or c ustomer” of Cru Energ y . A hear in g was held on the alleg ations. At the hear ing, the district court admitted into e vidence the transcr ipt of the September contempt hear ing (but not the documentar y evidenc e fr o m that hear ing) and took “judicial notice of its court file.” The district court p ro ce ed ed t o 2

co n sider additional evidenc e reg arding the alleg ations, including the testimony of Krueger an d former Cru Energ y employ ees Cook and Cortez. Documenta ry evidenc e was also admitted rela ting to Krueg er’ s alleg edly

improper c ontacts, including copies of e mail messag es and phone logs.
At the conclusion of t he hearing , the di strict court found that Krue g er had violated the temporar

y injunction as alleg ed. Spe ci fi cally , the district court found that Krue g er had made
23 separ ate withdrawa ls and transfe rs from a Cru Energ y bank acc oun t (the acc ount was not specific ally identified i n the contempt orde r, other tha n as “the bank account holdi ng Cru Energ y , I nc. funds”) , in the ag g reg ate amount of approximately $80,000. The district court further found that
Krue g er had also violated the injunction by sendi ng an email to sever al investors and employ ees of Cru Energ y , sending an email to a vendor of Cr u Energ y , and sending emails to Pablo Cortez,

an employ ee of Cru Energ y . For eac h violation, the district court committed Krue g er to j ail for five consec utive day s, for a total term of confine ment of 125 day s. Krue g er was immediately taken into custody

and conf ined to the Tra

vis County

jail. This habea s-cor

pus proce eding followed. 3

The rec ord ref

lects that m o s t of the evidenc e conce rning the alleg ed withdrawa ls and 2 transfe rs was a dmitted during the September he aring

. Krue g er was confine d from Dec ember 19, 2012, when he was taken into custody , throug h 3 Dec ember

31, 2012, when this Court order ed him rele ased upon the posting of bond. 5STANDARD AN D SCOP E OF REVIEW Contempt is “broa dly define d” as “disobedienc e to or disrespec t of a court by acting
in opposition to its authority .” In re Ree ce , 341 S.W .3d 360, 364 (Tex. 2 0 1 1 ) (orig. proce eding ) (citing Ex parte Chambers , 898 S.W .2d 257, 259 (Tex. 1995) (orig

. proce eding )). “[C] ontempt is

a broad and inhere nt power of a court.” Id

. (citing Ex parte Browne , 543 S.W .2d 82, 86 (Tex. 1976) (orig . proce eding )). How ever , [D] espite t he breadth of a cour t’s contempt power , we have warned it is a tool that should be exercised with caution. As the Court of Criminal Appea ls has explained, “[ c]ontempt is strong medicine” —the alleg ed contemnor’ s very liberty is oft en at stake—a nd so it should be used “only as a la st resort.”

Id . (interna l citations omit ted).

An order finding a party in contempt is not an ap p ea l able order

. See Norman

v. Norman , 692 S.W

. 2 d 6 5 5 , 6 5 5 (Tex. 1985). There fore , the only reme dies available to the
contemnor a

re obta ining a

writ of manda

mus if the contemnor is not confine d, or a writ of habe as corpus if, a s here , the contemnor is subject t o confine ment. See I n re Long , 984 S.W .2d 623, 625 (Tex. 1999); Ex parte Cardwell , 416 S.W .2d 382, 384 (Tex. 1967). “The reme dy [of habea s corpus] is in the nature of a collater al attack and its purpose is n o t to deter mine the ultimate g uilt or innocenc e of the rela tor, but only to asce rtain whether the rela tor has been unlawfully imprisoned.” Ex parte Gordon , 584 S.W .2d 6 8 6 , 6 8 8 (Tex. 1979). I n a habeas-c orpus proceeding , the order or judgme nt challeng ed is presumed to be valid until the rela tor has discharg ed his burden of showing otherwise. Ex parte Occ hipenti , 7 9 6 S.W .2d 805, 809 (Tex. App.—Houston [1st Dist.] 1990, orig

. proce eding ) (citing Johnson v. Zerbst , 304 U.S. 458, 468-69 (1938))

. For the rela tor to
6be ent i t l ed to rele ase from custody , “the trial court’s order of commitment must be void, either

beca use it was bey ond the power of the court or beca use it deprive d the rela tor of his liberty without due proc ess of law .” Ex parte Barne tt , 600 S.W .2d 252, 254 (Tex. 1980).

The amou n t o f due proce ss aff orded to the contemnor depends on the ty pe of contempt being char g ed. “Contempt may occur in the prese nce of a co u rt (direc t contempt), or outside the court’s prese nce (construc tive contempt).” Ree ce , 341 S.W .3d at 365 (citing Gordon , 584 S.W .2 d at 6 8 8 ). Be cause constructive contempt occur s outside the court’s prese nce, more
proce dural safe g uards are aff orded to constructive contemn o rs, including notice, a hear ing, and the opportunity to ob t ai n an attorney

. See Ex parte Krupps , 712 S.W .2d 144, 147 (Tex. Crim. App. 1986); Ex parte W

erblud , 536 S.W .2d 542, 546 (Tex. 1976) (orig

. proce eding ). I t is undisputed that the contempt alleg ed in this case , the violation of a written court order that occur red outside the court’s pr esenc e, is construc tive contempt. See Chambe rs , 898 S.W .2d at 259.

“Contempt is further classified into ei t her civil or criminal contempt.” Ree ce , 3 4 1 S

. W

. 3 d at 3 6 5. “Civil contempt in Texas is the proce ss by which a court exerts its judicial authority to compel obedienc e to some order of the court.” Ex parte Padron , 565 S.W .2d 921, 924 (Tex. 1978) (orig

. proce eding ). Once the contemnor obey s the court order , the contemnor is rele ased from his confine ment. See W erblud , 536 S.W .2d 545. I n other words, “the civil contemnor ‘ca rries the key s of his prison in his own pocket.’ ” Id

. (quoting Shillit ani v. United States , 384 U.S. 364, 368 (1966))

. “Criminal contempt[,] on the other hand[ , ] i s p u n i t i ve in nature .” Id

. “The sentenc e is
not conditioned upon some promise of future perf ormanc e beca

use the contemnor is being punished for some completed act which aff ronted the dignity and au t h ority of the court.” Id

. Her e, it is

7undisputed that Krue g er was subject to criminal contempt, confine d as pun is hment for his completed

act of alleg edly violating a court order and without the ability to obtain his releas e t h ro ug h compliance

. See R eec e , 341 S.W .3d at 365.

“Many constitutional rig hts are acc orded criminal contemnors.” W er blud , 536 S.W .2d at 547. Thi s is beca use “criminal contempt i s a crime in ever y fundame ntal respe ct,” Bloom v. Illinois , 391 U.S. 194, 201 (1968), and constitutional protec tions are require d to ensure
t h at t h e power to hold a person in contempt i s not abused. See id

. These rig hts include “f u l l an d complete notification” of the char g es and a “re asonable opportunity to me et the char g es by way of defe nse or explanation,” Gordon , 584 S.W .2d at 688, the rig ht to assistance of counsel if reque sted,
Ex parte Hiester , 572 S.W .2d 300, 302 (Tex. 1978), the privileg e ag ainst s elf-inc rimination,
W erbl u d , 5 3 6 S

. W.2d at 547-48, and the rig ht to a jury trial if the proposed punishment exceeds six months’ imprisonment. Taylor v. Haye s , 418 U.S. 488, 495 (1974); W erblud , 536 S.W .2d at 547.
Be cause “conte mpt proce eding s are quasi-cr iminal in nature ,” the proce dures followed in contempt

ca s es “should confor

m as near ly as prac ticable to those in criminal case s.” Ex parte Sanchez , 703 S.W .2d 955, 957 (Tex. 1986) (orig

. proce eding ); Ex parte Johnson , 654 S

. W

. 2 d 415,
420 (Tex. 1983) (orig

. proce eding ); In re Houston , 92 S.W

. 3 d 8 7 0 , 877 (Tex. App.—Houston [14t h Dist.] 2002, orig . proce eding ).

A criminal contempt conviction for disobedience to a cou rt o rder require s proof bey ond a rea sonable doubt of: (1) a rea sonably specific order ; (2) a violation of the order ; and (3) the willful intent to violate the order

. Chambers , 898 S.W .2d at 259. “I n revie wing the rec ord,

we are without jurisdiction to weig h the proof and deter mine whether it preponde rate s for or ag ainst

8the re lator; rathe r, we deter mine only if the judg ment is void because , for e x ample, the r elator ha s been confine d without a hear ing or with no evidenc e of contempt to suppor t his confine ment.” Id

. at 259-60. A revie wing court will issue a writ of habea s corpus and rele ase the contemnor if either the contempt o rd er o r t he order underly ing the contempt is void, beca use “one may not be held
g uilty of contempt for ref using to obey a void order .” Ex parte Shaffer , 649 S.W .2d 3 0 0 , 301-02 (Tex. 1983).

ANALYSIS

Krue g er contends that the contempt order is void for five rea sons: (1) the temporar y injunction underly ing the contem p t o rd er i s void for failing to comply with the require ments of
Texas Rule of Civil Procedur e 683; (2) the temporar y injunction is not sufficie ntly specific ; (3) the show-ca use order i n fo rm i n g Krueg er of the contempt char g es failed to notify him that criminal confine ment and a criminal penalty would be soug ht as punishment ; (4) there was no evidenc e supporting the district court’s finding s that Krue g er violated the injunction by making withdrawa ls

or transfe rs from Cru Energ y bank acc ounts; and (5) there was no evidenc e supporting the district court’s finding s that Krue g er violated the injunction by making contac t with the individuals he was prohibited from conta ct i n g. W e ag ree with Krue g er that the temporar y injunction he was alleg ed to have violated is void for fa ilure to comply with the require ments of Rule 683. “The law demands clea r and complete order s g ranting injunctions.” W ebb

v. Glenbrook Owners Ass’n , 298 S.W .3d 374, 384 (Tex. App.—Dallas 2009, no pet.) (citing Tex. R. Civ. P. 683). Rule 683 provides in pertinent part that “[e]very order g ranting an injunction

. . . shall
set forth the rea sons for its issuance; shall be specific in terms; shall descr ibe in rea sonable detail and

9not by ref

ere nce to the complaint or other document, the act or acts soug ht to be restra ined. Tex. R. Civ. P. 683. “The require ments of Rule 683 are mandatory and must be strictly followed.” Interfirst Bank San Felipe, N.A. v

. Paz Constr. Co. , 715 S.W .2d 640, 641 (Tex. 1986) (per curia m). “When a tempora ry injunction order doe s not adhere to the re quirements of Rule 683 the injunction orde r is subjec t to being decla

red void and dissolved.” Id .; see Qwest Commc’ns. Corp. v

. AT& T Corp. , 24 S.W .3d 334, 337 (Tex. 2000) (per curia m). “‘[T]he obvious purpose of [R ule 683] is to adequately inform a p ar t y of what he is enjoined from doing a

nd the re ason why

he is so enjoined.’” El Tacaso, Inc. v . Jireh Star, Inc. , 356 S.W .3d 740, 744 (Tex. App.—Dallas 2011, no pet.) (quoting Schulz v. Schulz , 478 S.W .2d 239,
244-45 (Tex. Civ. App.—Dallas 1972, no writ)) (alter ation in or igina l). There fore , “an injunction decr ee m u s t be as definite, clea r and prec ise as possible and when prac ticable it should inform the defe ndant of the acts he is restra ined from doi n g, wi t hout calling on him for infere nces or conclusions about which persons might well differ and without leaving any thing f o r f u rther hear ing.” Villalobos v. Holguin , 146 Tex. 474, 208 S.W .2d 871, 875 (Tex. 1948). Stated another way , “[t] he
i n j u n ct i on must spell out the details of compliance in clea r, specific and unambig uous terms s o that such person will rea dily know exactly what duties or obliga tions are imposed upon him.” Drew

v. Unauthorized Practice of Law Comm. , 970 S.W .2d 152, 1 56 (Tex. App.—Austin 1998, pet. denied) (citing Slavin , 412 S.W .2d at 44). “I nterpre tation of t he provisions of the c ourt order in question should not rest upon impl ication or c onjecture .” Id

.

“O n the other hand, a court order need not be ‘full of superf luous terms and specific ations adequa

te to counter any flig ht of fanc y a contemnor may imag ine in or der to decla re

10it vag ue.’” Id . (quoting Ex parte McM anus , 589 S.W .2d 790, 793 (Tex. Civ. App.—Dallas 1979,

no writ)). Rather, “the injunction must be in broad enoug h terms to preve nt repe tition of the evi l
soug ht to be stop ped, whether the repe tition be in form identical to that employ ed prior to the injunction or (wha t is far more likely ) in somewhat differ ent fo rm ca l culated to circ umvent the injunction as written.” San Antonio Bar Ass’n v. Guardian Abstract & Titl e C o. , 156 Tex. 7, 291
S.W .2d 697, 702 (Tex. 1956). But an injunction “must not be so broad as to enjoin a defe ndant from activities which are a lawful and proper exercise of his rig hts.” Hitt v. Mabry , 687 S.W .2d 791, 795 (Tex. App.—San Antonio 1985, no writ) (c iting Villalobos , 208 S.W .2d at 875).

The tempora

ry -injunction provisions at i ssue i n this case prohibited Krue g er from: (1) “making or initiating any withdrawa ls or transfe rs from any of Cru Energ y , I nc. bank acc ounts, including, but not limited to, the Wells Fa rg o Acc ount as define d in Plaintiff’s Orig inal Petition”; and (2) “conta cting any of Cru Energ y I n c. ’s investors or potential investors, or any other
persons doing business with or potentially a participa nt in the business of Cru Energ y , I nc., except

as s pecif ically authorized by Michae l Torre s.” We conclude that neither provision complies with Rule 683.
We first addre ss the prohibition ag ainst withdrawa ls or transfe rs from “a ny of
Cru Energ y , I nc. bank acc ounts, including, but not limit ed to, the Wells Far g o Acc ount as define d
in Plaintiff’s Orig inal Petition.” This prohibition violates Rule 683 in two way s. First, rathe r than descr ibing in rea sonable detail the Wells Fa rg o Acc ount, the injunction descr ibes the acc ount solely by ref ere nce to a separ ate document, the petition, that contains identify ing information reg arding the

acc ount in question. Thus, the petition—not the injunction—provides the means of descr ibing the

11act or acts soug ht to be restra ined. This is a violation of Rule 683’s require ment that the injunction

“desc ribe in rea sonable detail and not by referenc e to the complain t o r o t h er docume nt , the act

or ac ts sought to be r estraine d.” See Tex. R. C iv. P. 683 (emphasis added)

.

I n its brief, Cru Energ y acknow ledg es that “[a]t best, if transfe r from that [W ells Fa rg o] ac count had formed the basis of the contempt finding , it may have been subject to habea s corpus for that portion of the judgme nt.” Howeve r, Cru Energ y contends that the ref ere nce in the injunction to the Wells F arg o Acc ount w as “mer ely an example” of an acc ount that Krue g er

was prohibited from acc essing , and it “wa s irrele vant to the [contempt order ] beca use it was not the

acc ount R el at o r transfe rre d the money from and for which he was held in contempt.” I n other 4 words, acc ording to Cru Energ y , the only possible problem with the injunction is the ref ere nce to the Wells Fa rg o Acc ount, which Krue g er was not alleg ed to have acc essed. There fore , in Cru Energ y ’s view, if that portion of the injunction is found to be void, it does not aff ect t h e v al idity of the contempt orde r.

Howeve r, Cru Energ y ’s arg ument overlooks the second way in which the prohibition violates Rule 683. I n addition to impermissibly descr ibing the Wells Fa rg o Acc ount by ref

ere nce
to another document, the entire proh i b i tion on withdrawa ls and transfe rs fails to descr ibe
in rea sonable detail the other acc oun t s that Krue g er is enjoined from acc essing

. The injunction prohibits Krue g er from making withdrawa ls or transfe rs from “any ” Cru Energ y bank acc oun t s , “including but not limit ed to ” t h e W el ls Fa rg o Acc ount. But the injunction does not descr ibe in

We note that the contempt order did not specific ally identify the ac count from which 4 Krue g er had transfe rre d money in violation of the injunction, other than as “the bank acc ount holding Cru Energ y , I nc. funds.” The re cord r efle cts that there was more than one suc h acc ount. 12rea sonable detail those other acc ounts. There are no acc ount numbers lis t ed in the injunction, no

identification of the banks in which the acc ounts exis t, and no information descr ibing the history or

curr ent status of the acc ounts. Thus, even if we wer e to disreg ard the portion of the injunction that ref ere nced the Wells Fa

rg o Acc ount, the i njunction stil l violates Rule 683’s requirements t hat t he injunction “shall be specific in terms” and “s h all descr ibe in rea sonable detail

. . . the act or acts
soug ht to be restra ined.” See Tex. R. C iv. P. 683.

Cru Energ y ar gu es that the injunction “is in the most detail possible since
Mr. Krue g er would have to have known an acc ount which fit t h at descr iption in the injunction in order to be entitled to transfe r money out of it” and that “Kr ueg er himself established the Cru

acc ount he took the funds out of aft er h e ac q uired knowledg e of the J uly 5, 2011 injunction.”
Howeve r, Rule 683 require s that the injunct i o n b e as “def inite, clea r and prec ise as possible

. . . without calling on [t he enjoined party ] for infere nces or conclusions about which persons might well differ and without lea ving any thing for further hear ing.” Villalobos , 208 S.W .2d at 875. The injunction here , by not specific ally identify ing th e o ff -l i m i t acc ounts, require d Krue g er to make “infe renc es or con clusions about which persons might well differ ” reg arding the acc ounts he

was prohibited from acc essing and, conseque ntly , “lef t for further hear ing” the issue of wh et h er withdrawa ls and transfe rs from cer tain acc ounts violated the injunction. Thu s , t h e i njunction 5

The re cord of the September 6 contempt hear ing ref lects this problem. At the hear ing, 5 Krue g er testified that at o ne point he withdrew $160,000 from a Cru Energ y bank acc ount and transfe rre d the funds into his persona l acc ount, which, Kr u ege r claimed, was “linked” to a Cru Energ y bank acc ount. He later withdrew $56,000 of those funds from his persona l acc ount and transfe rre d the funds into another acc ount that, acc ording to Krue g er, was an “oper ating Cru Energ y acc ount” t h at he had opened at Ba nk of Americ a without authorization from Michae l Torre s. At another point in his testimony , Krue g er admitted to withdrawing $80,000 from “a Cru Energ y bank 13failed to c omply with the specific ity require ments of Rule 683. See Computek Computer & Office

Supplies, Inc. v. W

alton , 156 S.W .3d 217, 222-23 (Tex. A pp.—Dallas 2005, no pet.) (holding that lack of specific ity in injunction was not cure d by any knowledg e that enjoined party may have had).

W e also disag ree with Cru Energ y ’s contention that the injunction was in “t h e
most detail possible.” The second temp o ra ry injunction, which Krue g er was not alleg ed to have violated, specific ally order ed Krue g er to “[r]eturn $80,000 to the Cru Energ y bank acc ount number 7038038340 to said acc ount no later than J uly 18, 2011,” and to “[r]efrain and desist from deny ing or restric ting Michae l T o rres’ acc ess to all money in Cru Energ y , I nc.’s bank acc ount

num b er 7038038340 or any other acc ount in the name of Cru Energ y , I nc. at Wells Fa rg o Ba nk for usual and customary purposes of Cru Energ y , I nc.” T h us, the second injunction specific ally identified the re levant bank a ccounts, lea ving no doubt a s to how Krueg er w as to c omply with the injunction. The first injunction, on the other hand, contained no such specific ity

. To comply with Rule 683, t h e fi rs t injunction mere ly neede d to “desc ribe in rea sonable detail” the bank acc ounts that Krue g er was prohibited from acc essing

. See Tex. R. Civ P. 683. This was not an impractica ble require ment—providing the specific bank acc ount names and numbers would have suffice d. By not

acc ount,” but claimed that the trial court “didn’t specific ally say that I wouldn’t have acc ess to that acc ount.” Wit hout specific ity in the injunct i o n , questions rema in as to which particula r acc ounts qualify as “Cru Energ y , I nc. bank acc ounts” for purposes of the injunct i o n . For example, was Krue g er’ s persona l acc ount considere d a “Cru Energ y , I nc. bank acc ount” at the t ime it contained $ 160,000 of Cru Energ y funds? Simi larly , was the Ba nk of Americ a acc ount, which Kr u ege r testified he had opened wi thout authorization from Torre s, actua lly a “Cru Energ y , I nc. bank acc ount” or, d u e to the lack of authorization, was it another one of Krue g er’ s persona l acc ounts? Such questions can be answe red only by draw ing infere nces and conclusions based on information not contained within the injunction. 14providing that or simil ar information identify ing the specific acc ounts that Krue g er was enjoined

from ac cessing , the injunction failed to comply with Rule 683.
We next addre ss the prohibition ag ainst Krue g er “ c o n ta c ti n g a ny o f Cr u E n e r g y , I

n c.’s investors or potential investors, or any other persons doing business with or potentially a participa nt in the business of Cru Energ y , I nc., except as specific ally authorized by Michae l Torr es . ” T h is portion of the injunction violates Rule 683 by failing to descr ibe in rea sonable detail the individuals

or org anizations that Krue g er was prohibited from co n t ac ting. Specifica lly , the injunction fails
to name or otherwise identify those who are considere d “invest o rs or potential investors” of
Cru Energ y , and those who are “per sons doin g b u s i n es s with or potentially a participa nt in the business of” Cru Ene rg y .

Cru Energ y arg ues that beca use of Krue g er’ s role in r

unning the company , he is “in

a p o sition to know who wer e investors and persons doing business with Cru [Energ y ]

. ” E v en assuming that this is true, an injunction must be as “def inite, clea r and prec ise as possibl e . . . 6

There is some authority for the proposition that , at l ea s t i n the context of covena nts not 6 to compete, injunctions gener ally restra ining solicitation of customers and not specific ally listi ng t h e individual customers are not impermissibly vag ue. See Safeguard Bus. Sys., Inc. v. Schaff er , 822 S.W .2d 640, 644-45 (Te x . App.—Dallas 1991, no w rit). This is beca use, in that context, it is not “unre asonable to assume that he who is soug ht to be enjoined is sufficie ntly fam i l i ar wi t h t he employ er’ s business and its c ustomers to a void violating the injunction.” Id . This case prese nts a differ ent situation. First, Krue g er is prohibited from contac ting no t mere ly curr ent investors and persons curr ently doing business with Cru Energ y , but also “po t en tial” investors and “potential” participa nt s i n t h e business. Additionally , despite whateve r role Krue g er may have had in Cru Energ y in the past, the reco rd ref lects that during the ong oing litigation, Michae l Torre s has been making business decisions for the company , and there is no indication in the rec ord that Torre s has notified Krue g er of whom Torre s might be soliciting t o b ecome an “investor or pot ential i nvestor in” Cru Energ y , or of whom Torre s might be considering to become “a person doing business with or potentially a participa

nt in the business of” Cru Energ y . Thus, it would not be rea sonable on the fac ts of this case to assume that Krue g er is sufficie ntly familiar with Cru Energ y ’s inves tors, 15without calling on [t he enjoined party ] for infere nces or conclusions about which persons might

well differ and without leaving any thing for further hear ing.” Villalobos , 208 S.W .2d at 875. The ab ove prohibition fails to inform Krue g er of who he is enjoined from contac ting, and it requir es him to infer the identity of those individuals based on his then-e x isting knowledg e o f t he
company ’s opera tions. This is simil ar to the injunction in Computek , 156 S.W .3d at 2 21-23, that

was held to vio l at e Ru l e 683. I n that case , OEM Supplies (OEM) and the owner of Computek, Michae l Wil li ams , wer e opposing parties in litigation involving Computek’s alleg ed use of trade secr ets to form a competing company in violation of a covena nt not to compete. Id

. at 219-20.
Com p u t ek had been perma nently enjoined “fr om doing business, or authorizing any one else to do business, with any OEM client not listed on Attachment A or that was a n ew ac co u n t set up while Wil liams worked f

or OEM.” Id . at 221. Althoug h Attachment A listed some clients whom Computek could contac t, the injunction did not name or otherwise identify the cli en ts whom Computek c ould not contac t. Id

. Computek c ontended that due to this lack of specific ity , it c ould
not know whether contac ting cer tain clients violated the injunction. Id

. at 221-22. The appea ls court
ag ree d, explaining its reasoning as follows:
[T] hese para g raphs [of the injunction] enjoin Computek from taking specific actions involving specific OEM clients who are not identified o r l i s t ed in the perma nent injunction, and from using or disclosing information and files that are not specific ally

identified in the perma

nent injunction. Be cause these OEM clients are not spe cifica lly named, we ag ree with Computek that it must ask ever y non-AB BA contac t it makes whether it was an OEM client during the rele vant times, and that question may be construed as “ca nvassing ” or “soliciting,” and thus a violation of the

poten t i al i n v estors, and “any other persons doing business with or potentially a participa nt in the business of” Cru Ene rg y , to avoid violating the injunction. 16perma nent injunction. We ag ree with Computek that the perma nent injunction lacks specific ity

in this reg ard.

Id

. at 222. I n response to O EM’s arg ument that Computek “ ha[d] the information as to the clients it may not contact ‘ as demonstra ted by their repeate d contac ts of those clients,’” the appe als court observe d,
[E] ven if the trial court had expressly found Computek had such information, rule 683 provides that the order g ranting an injunction “shall set forth the rea sons for its issuance; shall be specific in terms; shall descr ibe in rea sonable detail and not by ref ere nce to the complaint or any other docu m en t , t he act or acts soug ht to be restra ined.” Thus, the i njunct i o n i t self mus t provide the specific information as to the off- limit s clients , without infere nces or conclusions, or, in this case , implied ref ere nces to other rec ords Computek might have. Thus, we cannot ag ree with OEM that the lack of

specific ity as to O EM clients is c ured by any knowledg e Computek may have outside the perma

nent injunction.

Id

. at 222-23. Simi larly , in this case, the injunction doe s not ide ntify the individuals who Krue g er is prohibited from contac ting, and it require s Krue g er to make infere nces or conclusions conce rning whom those individuals are . I n fac t, this injunction is even more vag ue than the injunction at issue
in Computek , which at least provided a list of specific clients who Computek could contac t. See id

. at 221. Krue g er was not specific ally informed of either whom he was allowed to c ontact or whom he wa s enjoined fr om contacting

.

For the above rea sons, we conclude that the first temporar y in j u n ct i o n v iolates the specific ity require ments of Rule 683 and is, acc ordi ng ly , void. Consequently , the order finding 7

I n its brief, Cru Energ y asser ts that if there is a lack of specific ity in the i n j u n ct i o n , the 7 defe ct would rende r t he inj unction mere ly voidable (and there fore s u b j ec t to attack only on direc t appea l) as opposed to void. We dis agr ee . T h e T exas Supreme Court has repe atedly stated that 17Krue g er in contempt for alleg edly violating that injunction is also void. S ee S h a f f er , 649 S.W .2d
at 301-02; In re Garza , 126 S.W .3d 268, 273 (Tex. App.—San Antonio 2003, orig

. proce eding ). I t is there fore unnece ssary for us to addre ss the other rea sons why , in Krueg er’ s view, the contempt order is void. See Gordon , 5 8 4 S

. W

. 2 d at 6 8 9-90; Garza , 126 S.W .3d at 273 n.4. We
g rant Krue g er’ s petition for writ of habea s corpus, vacate the district court’s contempt order , and order Krue g er discharg ed from custody and re l ease d from the bond set by this Court on Dec ember

31, 2012.

__________________________________________ Bob Pembe rton, J ustice
Be fore J ustices Pury ear , Pemberton and Rose Filed: May

16, 2013

an injunction that fa i l s t o s t ri ctly comply with the require ments of Rule 683 and other rules of civil proce dure is subject to being decla red void. See, e.g. , In re Office of Attorney Gen. , 257 S.W .3d 695, 697-98 (Tex. 2008) (per curia m); Qwest Commc’ns Corp. v. AT& T Corp. , 24 S.W .3d 334, 337 (Tex. 2000) (per curia

m); Interfirst Bank San Felipe, N.A. v. Paz Constr. Co. , 715 S.W .2d 640, 641 (Tex. 1986) (per curia m); Lancaster v. Lancaster , 155 Tex. 528, 291 S.W .2d 303, 308 (Tex. 1956); see also In re Garza , 126 S.W .3d 268, 271-73 (Tex. App.—San Ant o n i o 2003, orig

. proce eding ) (re jecting contention that injunction which failed to co m p l y with proce dural require ments was mere l y v o i d ab le and observing that “[i] f the supreme court had meant that such a temporar y injunction was voidable, we fee l cer tain it would have used the word ‘voidable.’ I nstead, the court has re peate dly

used the wor d ‘void’”)

. 18