author: BEA ANN SMITH, Justice.

text:
    AMALGAMATED ACME AFFILIATES, INC. and University Sports Publications Co., Inc., Appellants, v. Perry MINTON and Dean Allen Associates, Ltd., Appellees.
    No. 03-00-00181-CV.
    Court of Appeals of Texas, Austin.
    Nov. 9, 2000.

      Ralph A. Rash, Rash, Laney, Chapman & Schreiber, Austin, for Amalgamated.
    John J. McKetta III, Graves, Dougherty, Hearon & Moody, P.C., Austin, for appellees.
    H. Robert Powell, Hughes & Lice, L.L.P., Austin, for University.
    Before Chief Justice ABOUSSIE, Justices B.A. SMITH and PATTERSON.
   BEA ANN SMITH, Justice.

Appellant University Sports Publications Co., Inc. (University Sports) brings this appeal from a temporary injunction ordering it to refrain from making certain representations to customers and advertisers of appellees Dean Allen Associates, Ltd. (Dean Allen) and its founder Perry Min-ton. University Sports asserts five issues on appeal including constitutional free speech and due process arguments. We overrule these contentions and affirm the trial court’s ruling.

FACTUAL AND PROCEDURAL BACKGROUND

University Sports, a New York corporation, sells advertising space in sporting-event programs. Its affiliate, Amalgamated Acme Affiliates, Inc. (Amalgamated Acme), a Texas corporation, conducts market research. Minton worked for Amalgamated Acme until April 23, 1999. On July 8, 1999, Minton formed Dean Allen to sell advertising space for sports-event publications. Dean Allen competes directly with Amalgamated Acme and University Sports.

In October 1999, Minton sued Amalgamated Acme to establish both parties’ rights and obligations to one another. In the original petition, Minton alleged that Amalgamated Acme falsely asserted to both Minton and his customers that he was subject to, and in violation of, a non-compete agreement. Minton maintains that he did not sign a non-compete agreement and that the only possible agreement that Amalgamated Acme alludes to is an employee-confidentiality agreement. The record does not include any agreements signed by Minton. In his suit, Minton claimed that Amalgamated Acme’s assertions were defamatory and constituted tor-tious interference with his contracts and business relationships. On February 14, 2000, Minton amended his petition joining Dean Allen as a co-plaintiff and University Sports as a defendant, simultaneously seeking a temporary restraining order (TRO) to prevent the defendants from making certain representations about Min-ton. The trial court granted the TRO that same day, and set a hearing on the temporary injunction for the afternoon of February 22.

The citation, amended petition, and TRO were served on University Sports at its New York offices on February 16. In the meantime, Amalgamated Acme filed a motion to dissolve the TRO. On February 22, based on information gleaned during a deposition that morning, Minton notified Amalgamated Acme that he had non-suited his claims for injunctive relief against it and would only seek such relief against University Sports. University Sports authorized Ralph Rash, who was representing Amalgamated Acme, to adopt the motion to dissolve the TRO and argue the motion’s dissolution on University Sports’ behalf at the hearing. Further, University Sports instructed Rash to seek a continuance of the temporary injunction hearing. University Sports did not authorize Rash to address the merits of the temporary injunction itself.

At the hearing on the temporary injunction, the trial court offered to grant the motion for continuance and extend the TRO. Rash opposed extending the TRO, contending that it was overly broad and enjoined legal conduct. The trial court consequently denied the motion for continuance and declined to hear the motion to dissolve the TRO, explaining that a ruling on the temporary injunction would make the motion moot. Because Rash was not authorized to argue the merits of the temporary injunction, he requested leave of the court and was dismissed. The court proceeded with the temporary injunction hearing.

Minton testified that University Sports employees had contacted between forty and fifty of his customers falsely holding themselves out as representatives of the Austin Independent School District (AISD) and the University of Texas. These individuals then proceeded to tell the customers that Minton did not have a contract with either school, that Minton was under investigation, and that the customers should withhold payments to Min-ton. One set of materials in the record suggests that University Sports drafted letters of complaint on the customers’ own letterhead for them to sign and return to University Sports. Minton introduced evidence showing how University Sports circulated these letters to other customers and forwarded the complaints to Pat For-gione, superintendent of AISD, and Dr. Larry Faulkner, president of the University of Texas. Several customers stopped paying and performing under their contracts with Minton after receiving these letters.

One University Sports employee falsely identified himself as Perry Minton to one of Minton’s customers; the customer then discovered the caller was not Minton. A heated conversation ensued, and the University Sports employee told the Texas customer that he would have to fly to New York for a seven-hour deposition.

In another incident, University Sports employee Julie Wong impersonated Felicia Martinez. Martinez is the secretary for the athletic director of the Fort Worth Independent School District. Minton and University Sports were competing for a contract with that school district. Wong called Minton, identifying herself as Martinez. She told him that the school district was “looking to start negotiations,” but needed references from current projects. Minton began to share his confidential list of customers with Wong until he became suspicious. He asked to speak to the athletic director, but Wong said he was unavailable and quickly hung up. Minton immediately called the athletic director’s office, and Martinez denied having just talked with him. ■

Minton told the court that when he first formed Dean Allen, officers of University Sports told him that it was unfortunate he had chosen to compete with University Sports because it “had just spent $600,000 in 30 something lawsuits on a multi-state level to put the last folks that had tried this business out of business.” Minton testified that due to University Sports’ conduct his company was already having “serious trouble,” losing some customers who received the complaint letters. Further, he stated that University Sports’ conduct “makes it impossible for me to seek new business, because naturally the new businesses that I’m prospecting want to speak to the people that I’m currently doing business with.” He concluded, “I firmly believe that if I don’t receive this injunction, I will be put out of business.”

The trial court granted the temporary injunction. University Sports, the only party enjoined, brings this interlocutory appeal asking us to dissolve the temporary injunction. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(4) (West Supp. 2000).

STANDARD OF REVIEW

To obtain a temporary injunction, an applicant need only show a probable right to recover on final trial and probable injury in the interim. See Texas Alcoholic Beverage Comm’n v. Amusement & Music Operators of Tex., Inc., 997 S.W.2d 651, 657 (Tex.App.—Austin 1999, pet. dism’d w.o.j.). The applicant seeking a temporary injunction does not have to prove that it will finally prevail in the litigation. Transport Co. of Tex. v. Robertson Transps., Inc., 152 Tex. 551, 261 S.W.2d 549, 552 (1953). The purpose of a temporary injunction is to preserve the status quo pending a trial on the merits. Walling v. Metcalfe, 863 S.W.2d 56, 58 (Tex.1993). In an appeal from an order granting or denying a request for a temporary injunction, appellate review is confined to the validity of the order that grants or denies the injunctive relief. Universal Health Servs., Inc. v. Thompson, 24 S.W.3d 570, 576 (Tex.App.—Austin 2000, no pet.). The decision to grant or deny the injunction lies within the sound discretion of the court, and we will not reverse that decision absent a clear abuse of discretion. Id. This Court may neither substitute its judgment for that of the trial court nor consider the merits of the lawsuit. See id. Rather, we view the evidence in the light most favorable to the trial court’s order, indulging every reasonable inference in its favor, and determine whether the order was so arbitrary as to exceed the bounds of reasonable discretion. See id.

DISCUSSION

I. Free Speech

A. Prior Restraint

University Sports characterizes the temporary injunction as a prior restraint on its right to free speech, which is prohibited by the United States and Texas Constitutions. See U.S. Const. amend. I; Tex. Const, art. I, § 8; see also Davenport v. Garcia, 834 S.W.2d 4, 10 (Tex.1992). The order commands University Sports to desist and refrain from:

(a) communicating to the Austin Independent School District, the University of Texas, Host Communications, Inc., Longhorn Sports Network, the University of Texas — San Antonio, any businesses known to be a customer of Dean Allen, and/or any businesses known to be a potential customer of Dean Allen (including all employees and agents of all of the foregoing businesses) that Dean Allen or Minton has committed fraud, made misrepresentations, engaged in a scam, engaged in unfair competition, hurt the Austin Independent School District, hurt the University of Texas, hurt any other customer, violated any contract or agreement, or violated any law;
(b) communicating to the advertisers on Exhibit A [attached to the temporary injunction], any business known to be an advertiser with Dean Allen, and/or any business known to be a potential advertiser with Dean Allen (including all employees and agents of all the foregoing businesses) that Dean Allen or Minton has committed fraud, made misrepresentations, engaged in a scam, engaged in unfair competition, hurt the Austin Independent School District, hurt the University of Texas, hurt any other customer, violated any contract or agreement, or violated any law;
(c) suggesting or communicating to Dean Allen’s customers or advertisers that they should not pay their invoices to Dean Allen;
(d) representing itself as being representatives of the Austin Independent School District, the University of Texas, the University of Texas — San Antonio, or any other school district or agency, including any department or agency thereof.
(e)representing itself as being representatives of Dean Allen, including any employee or agent of Dean Allen.

The Texas Constitution provides that “[e]very" person shall be at liberty to speak, write or publish his opinions on any subject, being responsible for the abuse of that privilege.... ” Tex. Const, art. I, § 8. This free speech right, in some aspects, is interpreted more broadly than its federal equivalent. Davenport, 834 S.W.2d at 8-9. Because we decide this issue under the Texas Constitution, we need not reach the constitutionality of the injunction under the federal constitution, which would not grant any additional relief.

A prior restraint is an administrative or judicial order forbidding certain communications when issued in advance of the time that such communications are to occur. Reuters Am., Inc. v. Sharp, 889 S.W.2d 646, 653 n. 8 (Tex.App.—Austin 1994, writ denied) (quoting Alexander v. United States, 509 U.S. 544, 550, 113 S.Ct. 2766, 125 L.Ed.2d 441 (1993)). Under the Texas Constitution, prior restraints are presumptively unconstitutional. Davenport, 834 S.W.2d at 10. Courts prefer to sanction a speaker after, rather than before, the speech occurs. Id. at 9. Prior restraints may withstand constitutional scrutiny only when a trial court makes specific findings supported by the evidence that (1) an imminent and irreparable harm will deprive litigants of a just resolution of their dispute, and (2) the judicial action represents the least restrictive means to prevent that harm. Id. University Sports asserts that the injunction was invalidly granted because the court failed to make these specific findings.

B. Commercial Speech

Minton asserts that the enjoined speech is not protected by the constitution because it is commercial speech that is false and misleading. Commercial speech is “expression related solely to the economic interests of the speaker and its audience.” Central Hudson Gas & Elec. v. Pub. Serv. Comm’n, 447 U.S. 557, 561, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980). Because of the nature of commercial speech, some forms of regulation are permissible. State Bd. of Med. Exam’rs v. Burzynski, 917 S.W.2d 365, 370 (Tex.App.—Austin 1996, writ denied). Commercial speech is more objective, and hence more verifiable, than other types of speech. Friedman v. Rogers, 440 U.S. 1, 10, 99 S.Ct. 887, 59 L.Ed.2d 100 (1979). Further, “because of its importance to business profits, and because it is carefully calculated, [it] is also less likely than other forms of speech to be inhibited by proper regulation.” Id. For these reasons, restraints are appropriate to prevent speech from being deceptive. Id. These characteristics of commercial speech “may also make inapplicable the prohibition against prior restraints.” Id. (citing Virginia Pharmacy Bd. v. Virginia Consumer Council, 425 U.S. 748, 775-81, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976) (Stewart, J., concurring)).

University Sports disputes that the enjoined language is commercial speech. It asserts that commercial speech must promote a commercial transaction. See Central Hudson, 447 U.S. at 562, 100 S.Ct. 2343. Central Hudson involved advertising by a gas and electric company that promoted the use of electricity. Id. at 558. The Supreme Court noted that it has traditionally distinguished speech proposing a commercial transaction from other varieties of speech. Id. at 562.

We decline to define commercial speech as narrowly as University Sports suggests. Individual communications opposing a proposed automobile mall were held clearly to be commercial speech because they related solely to the economic interests of the speaker and its audience. ES Dev., Inc. v. RWM Enters., Inc., 939 F.2d 547, 558 n. 6 (8th Cir.1991) (affirming temporary injunction but modifying it to last for only three years), cert. denied, 502 U.S. 1097, 112 S.Ct. 1176, 117 L.Ed.2d 421 (1992). In ES Development, car dealers sent letters to their manufacturers opposing a proposed automobile mall. As a result of these letters, Ford, Oldsmobile, and Cadillac pulled out of negotiations to place franchises in the automobile mall. The court held that these letters constituted commercial speech. Id. Similarly here, University Sports’ speech is intended to end contractual relationships between Minton and his customers, or to prevent contractual relationships with potential customers. We hold that the speech in question is commercial speech.

To enjoy any protection, commercial speech must not be false or misleading. Burzynski, 917 S.W.2d at 370 (quoting Central Hudson, 447 U.S. at 566, 100 S.Ct. 2343); Owens v. State, 820 S.W.2d 912, 914 (Tex.App.—Houston [1st Dist.] 1991, writ ref'd) (“Intentionally false or misleading statements made in a commercial context are not protected_”). “ ‘[T]here can be no constitutional objection to the suppression of commercial messages that do not accurately inform the public about lawful activity. The government may ban forms of communication more likely to deceive the public than to inform it...Burzynski 917 S.W.2d at 371 (quoting Central Hudson, 447 U.S. at 563-64,100 S.Ct. 2343). Measures may be taken to prevent deception and confusion even if the speech is not inherently misleading but only potentially misleading. Gonzalez v. State Bar of Tex., 904 S.W.2d 823, 829 (Tex.App.—San Antonio 1995, writ denied).

By posing as AISD or the University of Texas or as Minton himself, University Sports took inherently misleading actions. Its allegations that Minton committed fraud, engaged in misrepresentations and scams, hurt its customers, and violated contractual agreements and the law, coupled with suggestions that Minton’s clients refuse to pay their invoices, are potentially misleading. Minton testified that some customers had refused to pay based on University Sports’ allegations.

We conclude that the trial court properly enjoined speech in a commercial context that caused deception and confusion. Such commercial speech is not constitutionally protected. Consequently, the prohibition against prior restraints is inapplicable here. See Friedman, 440 U.S. at 10, 99 S.Ct. 887.

C. Temporary Injunction

An applicant requesting a temporary injunction is not required to establish that she will prevail at trial. Walling, 863 S.W.2d at 58. The applicant’s burden is to establish a probable right of recovery following a trial on the merits and a probable injury in the interim, warranting preservation of the status quo pending the trial. Id. at 57. We hold that the trial court did not abuse its discretion in finding that Minton would have a probable right of recovery following a trial on the merits.

Minton demonstrated that he has been injured and will likely be irreparably injured should the injunction be dissolved. Minton testified at the hearing that he has already irretrievably lost contracts due to University Sports’ conduct. He further explained that it has been impossible to seek new business that requires references from current contractors. He stated, “I firmly believe that if I don’t receive this injunction, I will be put out of business.” Damages after the fact are inadequate when difficulty arises in calculating damages or when an award arrives too late. T-N-T Motorsports, Inc. v. Hennessey Motorsports, Inc., 965 S.W.2d 18, 24 (Tex.App.—Houston [1st Dist.] 1998, no pet.) We hold that the trial court did not abuse its discretion in granting the temporary injunction. We overrule University Sports’ first point of error.

II. Due Process

University Sports argues that the trial court violated Texas Rule of Civil Procedure 681 and its constitutional right to due process by holding the temporary injunction hearing without allowing it a reasonable amount of time to obtain counsel and prepare for the hearing. See Tex.R. Civ. P. 681; Lowe v. City of Arlington, 453 S.W.2d 379, 382 (Tex.Civ.App.—Fort Worth 1970, writ ref'd n.r.e.). Further, it complains that the court entered an order that does not comply with Texas Rule of Civil Procedure 683 because the injunction is not specific as to why plaintiffs would suffer irreparable injury, and because the order is vague and overbroad. See Tex.R. Civ. P. 683.

Due process requires adequate and reasonable notice appropriate to the nature of the hearing. Lowe, 453 S.W.2d at 382. “Such notice involves a reasonable time for preparation.” Id. Rule 681 reads: “No temporary injunction shall be issued without notice to the adverse party.” Tex.R. Civ. P. 681. This notice requirement implicitly requires that a party must be afforded an adequate opportunity to be heard. City of Austin v. Texas Pub. Employees Ass’n, 528 S.W.2d 637, 640 (Tex.Civ.App.—Austin 1975, no writ). A party must be given an opportunity to fully litigate the issue before the court grants the injunction. Tober v. Turner of Tex., Inc., 668 S.W.2d 831, 836 (Tex.App.—Austin 1984, no writ).

University Sports maintains that it was not given an opportunity to obtain counsel and prepare for the hearing, or to be heard and litigate the injunction. The trial court did not foreclose any such opportunity. University Sports argues that the trial court “could easily have extended the temporary restraining order an additional fourteen days for ‘good cause,’ and continued the hearing on the temporary injunction until March 14, 2000.” However, when the court offered to extend the temporary restraining order and grant the motion for continuance, University Sports did not accept. University Sports cannot now complain that the court violated Texas rules, or its constitutional right of due process, when University Sports was given an opportunity to accept a continuance on reasonable terms but rejected it. The grant or denial of a continuance is within the trial court’s sound discretion. Villegas v. Carter, 711 S.W.2d 624, 626 (Tex.1986). The trial court’s action will not be disturbed unless the record discloses a clear abuse of discretion. Id. By denying University Sports’ motion for continuance on these facts, the trial court did not abuse its discretion.

University Sports also asserts that it did not have counsel present at the temporary injunction hearing because Rash was only making a partial or special appearance on its behalf. Rash was authorized to adopt Amalgamated Acme’s motion to dissolve the TRO, and to argue the motion to continue the temporary injunction hearing. University Sports did not authorize Rash to argue the merits of the injunction. University Sports does not offer any support for its argument that an attorney can make a partial or special appearance as to some matters but not others while still preserving the party’s rights on appeal as to those matters it refused to permit the attorney to argue.

We note that University Sports uses Rash’s “partial appearance” to work in its favor in two contrary ways. Rash represented University Sports in order to adopt the motion to dissolve and to preserve the constitutional arguments it now advances. On the other hand, University Sports claims Rash was not authorized to represent University Sports on the merits of the injunction, so it was error to continue with the hearing. University Sports cannot have it both ways. Rash’s limited representation was at University Sports’ direction. University Sports cannot now make any due process complaint the absence of counsel at the temporary injunction hearing.

We next turn to Rule 683, which reads in relevant part: “Every order granting an injunction ... shall set forth the reasons for its issuance; shall be specific in terms; shall describe in reasonable detail ... the act or acts sought to be restrained.... ” Tex.R. Civ. P. 683. This rule requires that the trial court provide the reasons it believes the applicant’s probable right of recovery will be endangered if it does not grant the injunction. TranspoH Co., 261 S.W.2d at 553. The injunction here states:

[T]he Court finds and concludes (a) that Plaintiffs will probably prevail on the trial of this cause, including that University Sports Publications Co. Inc. has wrongfully misrepresented itself to and wrongfully communicated with customers and advertisers of Dean Allen with the intent to interfere in such relationships; (b) that immediate and irreparable injury, loss or damage will result to Plaintiffs before trial ... unless Defendants University Sports Publications Co., Inc. is forthwith enjoined ... and (d) that without the issuance of this temporary injunction, said Defendant will alter the status quo and Plaintiffs will be without any adequate remedy at law.

University Sports contends that this language fails to explain why the applicant’s probable right of recovery will be endangered. Minton, on the other hand, compares the language in the present injunction to that in Inex Indus., Inc. v. Alpar Resources, Inc., 717 S.W.2d 685 (Tex.App.—Amarillo 1986, no writ). In that case, the court held that the trial court sufficiently stated its reasons “that Wallace and Inex would, if allowed to continue, alter the status quo, tend to make ineffectual a judgment in favor of Alpar, and leave Alpar without an adequate remedy at law.” Id. at 688. These recitations were held to satisfy Rule 683 as interpreted by the supreme court. Id.

Here the trial court sufficiently stated that University Sports’ conduct was interfering with Minton’s relationships with his customers and advertisers and that as a result of this interference, Minton was likely to suffer immediate and irreparable injury. In Transport Co., a proper showing of a probable right of recovery was made by outlining the manner in which the defendant had interfered with the plaintiffs customers, and then stating “that such interference with customers and markets and diversion of freight tonnage and revenues would result in irreparable and inestimable damage to the plaintiffs.” Transport Co., 261 S.W.2d at 553. We are unable to distinguish the language in Transport Co. from the present injunction. Therefore, we hold that the language of the injunction sufficiently describes how Minton’s probable right of recovery will be endangered.

University Sports next asserts that the injunction fails to describe in reasonable detail the acts it seeks to restrain in violation of Rule 683. See Tex.R. Civ. P. 683. It argues that the injunction fails to identify Minton’s actual customers and advertisers other than the AISD, the University of Texas, and the University of Texas—San Antonio. It complains that the injunction also does not identify Minton’s potential customers or advertisers. University Sports claims that the terms “engaged in a scam,” “engaged in unfair competition,” and “hurt” are not capable of reasonable construction and thus their inclusion violates Rule 683. See id. Finally, it asserts that the terms “violated a law” or “violated a contract” are overly broad.

We hold that to the extent the injunction does not specifically name Min-ton’s actual customers and advertisers, University Sports has admitted it can identify these parties. First, attached to the injunction is a fifteen-page list of Minton’s advertisers. Second, the injunction identifies specific customers: AISD, the University of Texas, Host Communications, Inc., Longhorn Sports Network, and the University of Texas—San Antonio. Third, University Sports noted in its brief to this Court that it “presumably attempts to sell their services to a similar client base.” The injunction, therefore, reasonably identifies Minton’s actual and potential customers.

University Sports next claims that the terms “engaged in a scam,” “engaged in unfair competition,” and “hurt” are not capable of reasonable construction. The terms need not be construed. The injunction prohibits University Sports from using those specific terms in reference to Minton. For example, University Sports may not tell AISD that Minton has “engaged in a scam.” We hold that the use of these terms in the order does not violate Rule.683.

Finally, University Sports maintains that an injunction “must not be so broad as to enjoin a defendant from activities which are lawful and a proper exercise of his rights.” Villalobos v. Holguin, 146 Tex. 474, 208 S.W.2d 871, 875 (1948). It argues that in the event Minton violates a contract or law, University Sports has the right to make statements to that effect. Minton counters that an injunction “must be in broad enough terms to prevent repetition of the evil sought to be stopped, whether the repetition be in form identical to that employed prior to the injunction or (what is far more likely) in somewhat different form calculated to circumvent the injunction as written.” Republic W. Ins. Co. v. State, 985 S.W.2d 698, 706 (Tex.App.—Austin 1999, pet. dism’d w.o.j.) (quoting San Antonio Bar Ass’n v. Guardian Abstract & Title Co., 156 Tex. 7, 291 S.W.2d 697, 702 (1956)). We hold that the injunction is broad enough to prevent University Sports’ circumvention, but narrow enough to allow University Sports to engage in lawful and proper exercises of its rights— to continue soliciting and selling its services to these advertisers and customers. We overrule University Sports’ second, third, and fourth points of error.

III. Bond

University Sports contends that the trial court abused its discretion in setting a $500 bond, which it claims is grossly disproportionate to the injury it will incur from the injunction. We hold that University Sports waived this issue. University Sports was on notice that the $500 bond set for the TRO would be extended to the injunction. However, University Sports did not authorize Rash to argue this point to the court, and raises it for the first time on appeal. The issue, then, was not preserved for our review. See Tex.R.App. P. 33.1. University Sports points to nothing in the record to show the bond was insufficient. See Biodynamics, Inc. v. Guest, 817 S.W.2d 128, 131 (Tex.App.—Houston [14th Dist.] 1991, writ dism’d by agr.) (overruling point of error). We overrule University Sports’ fifth point of error.

CONCLUSION

We hold that the trial court properly enjoined commercial speech that is false and misleading, that the injunction did not violate due process rights or the Texas Rules of Civil Procedure, and that University Sports waived error as to the amount of the bond. We overrule University Sports’ points of error and affirm the order granting the temporary injunction.

      . We will refer to Dean Allen and Perry Min-ton collectively as Minton.

      . Minton contends that University Sports waived its constitutional free speech arguments because no such arguments appear in the record. To preserve error for appellate review, a party must have presented to the trial court a timely request, objection, or motion stating its specific complaint. Tex. R.App. P. 33.1; Miller Paper Co. v. Roberts Paper Co., 901 S.W.2d 593, 600 (Tex.App.—Amarillo 1995, no writ). The motion to dissolve the TRO, adopted by University Sports, incorporated free speech arguments based on article I, section 8 of the Texas Constitution and the Fourteenth Amendment of the United States Constitution. Cf. Valdez v. Valdez, 930 S.W.2d 725, 728 (Tex.App.—Houston [1st Dist.] 1996, no writ) (explaining that party could preserve error by joining in motion of another party); Martinez v. State, 833 S.W.2d 188, 191 (Tex.App.—Dallas 1992, writ ref'd) ("A defendant may adopt an objection made by a codefendant and, thus, preserve error when there is sufficient indication in the record of his intent to adopt the objection.”). By declining to hear the motion to dissolve and proceeding with the temporary injunction hearing, the trial court implicitly overruled that motion and its arguments therein. See Tex.R.App. P. 33.1(a)(2)(A); Hardman v. Dault, 2 S.W.3d 378, 381 (Tex.App.—San Antonio 1999, no pet.). The specific references to the constitutional rights at issue, which were brought to the court’s attention and implicitly overruled by the court, preserved error. See Miller Paper Co., 901 S.W.2d at 600.

      . Minton also contends that University Sports’ expression amounts to conduct that is not protected by either the First Amendment or the Texas Constitution. We do not reach that argument today.

      . We reach a similar result when we consider that the communications enjoined here are private. Courts have refrained from protecting speech that is “solely of personal interest.” Jones v. Memorial Hosp. Sys., 677 S.W.2d 221, 224 (Tex.App.—Houston [1st Dist.] 1984, no writ) (analyzing federal First Amendment cases for guidance regarding Texas Constitution article 1, section 8). "To be entitled to [constitutional] protection, speech must relate to matters of 'political, social, or other concern to the community.’ ” Id. (citing Connick v. Myers, 461 U.S. 138, 150, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983)). In a decision with facts that parallel this case, the court upheld a temporary injunction. Karamchandani v. Ground Tech., Inc., 678 S.W.2d 580, 582 (Tex.App.—Houston [14th Dist.] 1984, writ dism’d w.o.j.). Nand Kar-amchandani, a stockholder, filed suit seeking liquidation of Ground Technology’s assets. Karamchandani subsequently sent letters to Ground Technology's clients requesting assistance in the lawsuit. Ground Technology was granted a temporary injunction to enjoin Kar-amchandani from writing letters that would interfere with Ground Technology’s contractual relationships. Seeking to dissolvé the temporary injunction, Karamchandani argued that it was a restraint on his free speech, citing article 1, section 8 of the Texas Constitution. The court disagreed: "The injunction was granted to prevent harm from private communication, and to preserve the status quo. The communication was to specific individuals with the intention of coercing them to discontinue business with [Ground Technology].” Id.; see also Menna v. Romero, No. 04-99-00475-CV, 2000 WL 5003, 2000 Tex. App. LEXIS 44 (Tex.App.—San Antonio January 5, 2000, no pet. h.). Here University Sports was personally contacting Minton's clients by telephone and fax attempting to persuade them to sign complaint letters about Minton and to refuse to pay their invoices. University Sports was contacting specific individuals using private means of communication, attempting to induce — and in some cases successfully inducing — these individuals to discontinue contracts with Minton. University Sports was engaging in private communication, which is not constitutionally protected.

      . We distinguish Markel v. World Flight Inc., 938 S.W.2d 74 (Tex.App.—San Antonio 1996, no writ). The Markel court considered an injunction that prevented any speech with specific individuals. Here the injunction is not a blanket prohibition on speech. It does not prevent University Sports from promoting its own services to Minton’s customers and advertisers, or potential customers and advertisers. Nor does it prevent University Sports from comparing its own services to those of Minton. Nonetheless, if Davenport applies here, Minton has satisfied the two-part test. As discussed infra, first, evidence in the record indicates that Minton has and will suffer imminent and irreparable harm absent the injunction. Second, as discussed with regard to University Sports’ due process arguments, the injunction represents the least restrictive means to prevent that harm. The injunction is broad enough to prevent University Sports from circumventing the injunction, but not so broad as to affect University Sports’ lawful and proper exercise of its rights.

      . We also note that University Sports was served February 16 wi& notice of the temporary-injunction hearing set for February 22. University Sports neither explained to the trial court why it did not obtain counsel, nor its efforts to obtain counsel. Without such testimony and in light of Rash’s authorization to argue at least some points, we cannot say the trial court’s action was arbitrary and unreasonable. See Computize, Inc. v. NHS Communications, 992 S.W.2d 608, 613 (Tex.App.—Texarkana 1999, no pet.).


source: Caselaw Access Project

author: Justice ROSS.

license: Public Domain

text:
    In re COLONIAL CASUALTY INSURANCE COMPANY.
    No. 06-00-00144-CV.
    Court of Appeals of Texas, Texarkana.
    Submitted Nov. 9, 2000.
    Decided Nov. 10, 2000.
    Rehearing Overruled Nov. 28, 2000.
    J. Albert Kroemer, Jane E. Dillinger, Todd J. Liles, Prager, Metzger & Kroemer, PLLC, Dallas, for relator.
    Stephen J. Backhaus, Lloyd E. Hoffman, Hoffman Kelley, LLP, Dallas, for real party in interest.
    Before CORNELIUS, C.J., GRANT and ROSS, JJ.
   OPINION

Opinion by

Justice ROSS.

Colonial Casualty Insurance Company has filed a petition for writ of mandamus asking this Court to determine that mandatory venue lies in Travis County and to instruct the trial court to rescind its order denying Colonial’s motion to transfer venue and to issue a new order granting the motion and transferring the cause to Travis County, Texas.

In the underlying lawsuit, Steven Schneider, a worker injured in a fall from a roof, sought to recover compensation for his injuries. Two potential employers were involved, and in administrative proceedings the Texas Workers’ Compensation Commission concluded that at the time of his injury, he was a borrowed servant and found Crum & Forster to be the covering insurer.

Schneider and Crum & Forster filed suit seeking judicial review of the decision, alleging venue was correct in Lamar County. Colonial contested venue, alleging that mandatory venue lies in Travis County under Tex.Lab.Code Ann. § 410.255(a) (Vernon 1996). After a hearing, the trial court concluded that venue lies in Lamar County.

Colonial contends that (1) mandamus relief is proper because there is a mandatory venue statute involved, and (2) we should grant relief because this is not the type of action which involves “eligibility” for benefits — and therefore was required to be filed in Travis County.

Mandamus will not issue when there is a clear and adequate remedy at law, such as a normal appeal. Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992). Mandamus should issue only in situations involving manifest and urgent necessity and not for grievances where other remedies may apply. Holloway v. Fifth Court of Appeals, 767 S.W.2d 680, 684 (Tex.1989). The requirement that a person seeking mandamus relief establish the lack of an appellate remedy is a “fundamental tenet” of mandamus practice. Walker, 827 S.W.2d at 840; Holloway, 767 S.W.2d at 684.

This Court lacks jurisdiction to issue writs of mandamus to supervise or correct incidental trial rulings when there is an adequate remedy by appeal. Bell Helicopter Textron v. Walker, 787 S.W.2d 954, 955 (Tex.1990). Incidental rulings include venue determinations. Bridgestone/Firestone, Inc. v. Thirteenth Court of Appeals, 929 S.W.2d 440, 441 (Tex.1996).

Colonial argues that mandamus is available because this case involves a mandatory statute, citing Proffer v. Yates. In that case, the court stated that mandamus was available in connection with a mandatory statute in a suit involving the parent-child relationship. In its most recent pronouncement on this area of the law, the Texas Supreme Court distinguished that case. In re Missouri Pac. R.R. Co., 998 S.W.2d 212, 215 (Tex.1999). The court recognized that it had held that an “appeal is inadequate to remedy an erroneous venue decision in only one instance — mandatory transfer in a suit involving the parent-child relationship,” reasoning that the need to expeditiously resolve custody and support issues makes ordinary appeal inadequate. The court then stated, “Outside of suits involving the parent-child relationship, our Court has steadfastly declined to review by mandamus whether venue was proper in the county of suit under the venue statutes.” Id.

This holding does not support any attempt to expand the availability of mandamus relief on venue determinations outside that specific context.

The court then recognized that the latest revisions of the venue statute allow the use of mandamus to “enforce the mandatory venue provisions of this chapter.” Tex. Civ.Prac. & Rem.Code Ann. § 15.0642 (Vernon Supp.2000) (emphasis added); Missouri Pac., 998 S.W.2d at 215. The court carefully stated that its prior position remained intact and that venue could only be reviewed by mandamus under the previously recognized family law exception and under Chapter 15 of the Civil Practice and Remedies Code as explicitly provided by the Legislature.

This falls under neither exception. Accordingly, we conclude that mandamus is not available to review this venue determination.

The petition is denied.

      . Montalvo v. Fourth Court of Appeals, 917 S.W.2d 1, 2 (Tex.1995); Polaris Inv. Mgmt. Corp. v. Abascal, 892 S.W.2d 860, 862 (Tex.1995); Bell Helicopter Textron v. Walker, 787 S.W.2d 954, 955 (Tex.1990); see also Pope v. Ferguson, 445 S.W.2d 950, 954 (Tex.1969).

      . Proffer v. Yates, 734 S.W.2d 671 (Tex.1987).


author: Justice HILL.

text:
    Bobby HELPINSTILL, Appellant, v. REGIONS BANK, Successor in Interest to and Formerly Known as Longview National Bank, Appellee.
    No. 06-99-00070-CV.
    Court of Appeals of Texas, Texarkana.
    Submitted Oct. 5, 2000.
    Decided Nov. 15, 2000.
    Rehearing Overruled Dec. 5, 2000.

      Ron Adkison, Wellborn, Houston, Adki-son, Mann, Henderson, Kenneth L. Ross, Ross, Hudgens & Graves, Longview, for appellant.
    David R. Watson, Jerry S. Harris, Har-bour, Smith, Harris & Merritt, Longview, for appellee.
    Before CORNELIUS, C.J., GRANT and HILL, JJ.
   OPINION

Opinion by

Justice HILL.

Bobby Helpinstill, individually and as a general partner in MBO Computers, a Texas general partnership, appeals from a judgment in favor of Regions Bank, successor in interest to and formerly known as Longview National Bank. The Bank sued Helpinstill to recover funds representing overdrafts that Helpinstill’s partner in MBO, Mike Brown, had made when paying creditors of the partnership. Brown, while creating overdrafts on the partnership account, was shuffling funds from one bank account to another and is now in federal prison for conducting a check-kiting scheme.

Helpinstill presents seven points of error in which he contends that: (1) there is no evidence, or, strictly in the alternative, legally and factually insufficient evidence, that he ratified Brown’s actions; (2) there is no evidence or, strictly in the alternative, legally and factually insufficient evidence, that Brown’s deposit of money “created” by his kiting scheme was within the ordinary course of business of the partnership; (3) the honorable trial court erred in instructing the jury, over Helpinstill’s objection, on the obligations of one partner to another, because the instructions given are an improper comment on the weight of the evidence; they inform the jury of the effects of their answers, they are not necessary to allow the jury to decide this case; and they impermissibly shift the burden of proof to Helpinstill; (4) the honorable trial court erred in overruling Helpinstill’s objection that the phrase “in the ordinary course of business” used in jury question number one is a legal phrase and should be defined; (5) the honorable trial court erred in submitting jury question number two without limiting the benefit of the deposits reference in the question to those attributable to Brown’s illegal kiting scheme; (6) the honorable trial court erred in submitting jury question number three without limiting the time period during which the appellant could ratify Brown’s actions to the period of time after the appellant first learned that Brown was illegally kiting checks through the partnership bank account; and (7) the honorable trial court erred in refusing to submit the appellant’s requested jury questions numbers one through four, on the grounds that the proposed jury questions were a controlling issue in the case.

We affirm because: (1) there is legally and factually sufficient evidence to support the jury’s finding that Brown, in depositing to and writing checks on the partnership account at Longview National Bank, was acting in the ordinary course of business of the partnership; (2) because the undisputed evidence established Helpins-till’s liability to the bank as a matter of law, any error in giving the instructions to the jury on partnership law to which Hel-pinstill objects was not such an error as probably caused the rendition of an improper judgment or prevented Helpinstill from properly presenting his case to this court; (3) the trial court did not err in failing to submit to the jury a definition of the phrase “in the ordinary course of business” because the term is one of common use and has no special legal or technological meaning; and, even if the failure to define the phrase was error, it is not reversible because Helpinstill did not submit a definition to the trial court; (4) because the evidence is undisputed that MBO benefited from the funds deposited in the partnership bank account at Longview National Bank, both before and after the initiation of Brown’s check-kiting scheme, any error by the trial court in failing to limit a jury question inquiring about such a benefit without limiting it in time to the period of the check-kiting scheme was not such an error that probably caused the rendition of an improper judgment or prevented Helpinstill from properly presenting his case to this court; and (5) any error by the trial court with respect to either of the questions relating to Helpins-till’s ratification of Brown’s action is likewise harmless because Helpinstill’s liability to the bank was established as a matter of law without any need of his ratifying Brown’s check-kiting scheme.

Helpinstill argues in point of error two that there is no evidence or, alternatively, factually insufficient evidence to support jury question number one, which asked whether Brown, in depositing to and writing checks on the bank accounts of MBO, that resulted in an overdraft at Longview National Bank in January 1997, was acting in the ordinary course of business of the partnership. We note that the question did not inquire, as intimated by Helpinstill in his point of error, whether “Brown’s deposit of money ‘created’ by his kiting scheme was within the ordinary course of business of the partnership.” In determining whether there is no evidence of probative force to support a jury’s finding, we must consider all of the evidence in the record in the light most favorable to the party in whose favor the verdict has been rendered, and we must apply every reasonable inference that could be made from the evidence in that party’s favor. See Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997). In this review, we disregard all evidence and inferences to the contrary. See Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex.1995); Best v. Ryan Auto Group, Inc., 786 S.W.2d 670, 671 (Tex.1990). We will sustain a no-evidence point of error when: (1) there is a complete absence of evidence of a vital fact; (2) the court is barred by rules of law or evidence from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a mere scintilla of evidence; or (4) the evidence conclusively establishes the opposite of the vital fact. See Havner, 953 S.W.2d at 711. More than a scintilla of evidence exists when the evidence supporting the finding, as a whole, rises to a level that would enable reasonable and fairminded people to differ in their conclusions. Id; Burroughs Wellcome Co., 907 S.W.2d at 499.

Helpinstill and Brown were partners in MBO. They created a partnership banking account at Longview National Bank, each agreeing that he would be individually liable for any overdrafts created on the account. It began to be a regular procedure of the business that Brown, who was actively managing the business, would write overdrafts on the account and cover them later with deposits. Helpinstill acknowledges that Brown’s activity in depositing checks to and writing checks on the partnership account and creating overdrafts on those accounts was, prior to Brown’s kiting scheme, in the ordinary course of business of the partnership. We believe that the evidence is sufficient to support the jury’s finding that Brown’s depositing checks to and writing checks on the bank accounts of MBO in January 1997 was in the ordinary course of business of the partnership. We disagree with Hel-pinstill’s contention that such activity by Brown ceased to be in the ordinary course of business of the partnership when Brown initiated a check-kiting scheme by shuffling money from one account to another, all in different banks, in order to keep MBO solvent. Brown’s creation of the overdrafts was in the ordinary course of business of MBO, even though the illegal check-kiting scheme was not.

When we consider a factual sufficiency challenge to a jury’s verdict, we must consider and weigh all of the evidence, not just that evidence that supports the verdict. See Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex.1998). We may set aside the verdict only if it is so contrary to the overwhelming weight of the evidence that the verdict is clearly wrong and unjust. Id.; Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986). In support of his argument under this point of error, Helpinstill refers us to testimony indicating that the $381,011.15 lost by Regions Bank was the amount representing the bank’s exposure as a result of MBO’s activities in the three banks that Brown used in his kiting scheme. Considering this and all other evidence, we do not find that the verdict is so contrary to the overwhelming weight of the evidence that the verdict is clearly wrong and unjust.

Helpinstill insists that he is not liable personally for the debt to the bank because he was not aware that Brown was kiting checks and did not ratify the kiting scheme. We hold that Helpinstill’s liability was established by virtue of the fact that the partnership was indebted to the bank for the overdrafts that Brown created in the ordinary course of the partnership’s business, and Helpinstill, as a general partner, is responsible for such partnership debts. Tex.Rev.Civ.Stat.Ann. art. 6132b-3.04 (Vernon Supp.2000).

In urging that he does not have personal liability, Helpinstill relies upon the cases of K & G Oil Tool & Serv. Co. v. G & G Fishing Tool Serv., 158 Tex. 594, 314 S.W.2d 782, 793 (1958); Darnell v. Martin, 740 S.W.2d 15, 16 (Tex.App.—El Paso 1987, writ denied); First State Bank & Trust Co. of Rio Grande City v. Colpaugh, 489 S.W.2d 675, 679 (Tex.Civ.App.—San Antonio 1972, no writ); and Maclay v. Kelsey-Seybold Clinic, 456 S.W.2d 229, 232 (Tex.Civ.App.—Houston [1st Dist.] 1970), aff'd, 466 S.W.2d 716 (Tex.1971). We find all of these cases to be distinguishable, because none involves, as does this case, liabilities incurred because of activities conducted in the ordinary course of business that are in part facilitated by illegal activity.

Helpinstill contends that the real issue is whether Brown’s check-kiting scheme was in the ordinary course of business. He suggests that the source of the overdrafts was the collapse of the kite and that the overdrafts are attributable to bank fraud. In fact, the source of the overdrafts was the fact that Brown was writing checks exceeding the actual deposits on account; the overdrafts are attributable, then, to the lack of sufficient funds to cover the checks Brown wrote. The kiting scheme, rather than creating the overdrafts, was being used to disguise them; and, while not in itself in the ordinary course of the partnership’s business, the kiting scheme did not change the fact that the creation of overdrafts was in the ordinary course of the partnership’s business. We overrule point of error two.

Helpinstill insists in point of error three that the trial court erred in including in its charge certain instructions relating to Texas partnership law because they were an improper comment on the weight of the evidence, they informed the jury of the effect of their answers, they are not necessary to allow the jury to decide this case, and they impermissibly shift the burden of proof to him. We hold that the undisputed evidence established Helpins-till’s liability to Regions Bank as a matter of law. Consequently, we hold that even if the trial court erred in giving the partnership law instructions for one or more of the reasons cited by Helpinstill, it was not such an error that probably caused the rendition of an improper judgment or prevented Helpinstill from properly presenting his case to this court. Tex.R.App.P. 44.1(a). We therefore overrule point of error three.

Helpinstill urges in point of error four that the trial court erred in overruling his objection to the lack of definition in the court’s charge for the phrase “in the ordinary course of business.” This term is one of common use that has no special legal or technological meaning. As noted by Hel-pinstill, the phrase is frequently used in statutes in connection with the legal definition of other words or phrases, but without itself being defined. Because the term is one of common use that has no special legal or technological meaning, it need not be defined. See Pritchett v. Highway Ins. Underwriters, 158 Tex. 116, 309 S.W.2d 46, 49 (1958). Helpinstill presents no authority in support of his argument that the phrase has such a specialized legal or technological meaning apart from its meaning in the ordinary sense, and we are not aware of any. We also note that Helpins-till did not submit a definition of the phrase in writing to the trial court. Under those circumstances, the trial court’s failure to submit a definition of the phrase is not a possible ground for reversal. Tex. R.CrvP. 278. We overrule point of error four.

Helpinstill contends in point of error five that the trial court erred by submitting jury question two without limiting the benefit of deposits reference in the question to those attributable to Brown’s check-kiting scheme. Question two in the court’s charge inquired whether MBO had and received the benefit of funds credited to its bank account at Longview National Bank. Undisputed evidence was presented that shows that the partnership benefited from those funds credited to its account at Longview National Bank, both before and during Brown’s check-kiting scheme. Consequently, we hold that if the trial court erred in faffing to limit question two to deposits made during Brown’s check-kiting scheme, it was not such an error that probably caused the rendition of an improper judgment or prevented Helpins-till from properly presenting his case to this court. TexR.App.P. 44.1(a). We also note that Helpinstill failed to preserve this error because he made no objection to this question on the grounds raised in this point of error. Tex.R.App.P. 33.1. We therefore overrule point of error five.

Helpinstill insists in point of error one that there is no evidence or, alternatively, factually insufficient evidence that he ratified Brown’s actions, while he insists in point of error six that the trial court erred by not limiting the time period during which he could ratify Brown’s actions to the period of time after he first learned that Brown was illegally kiting checks through the partnership account. Inasmuch as we have held that Brown’s depositing checks to and writing checks on the bank accounts of MBO in January 1997 was in the ordinary course of business of the partnership, Helpinstffi’s liability in this case does not depend upon his ratifying Brown’s actions. See Tex.Rev.Civ.Stat. Ann. arts. 6132b-3.03, 6132b-3.04 (Vernon Supp.2000). Therefore, if the trial court made any error with respect to either of these questions dealing with Helpinstffi’s ratification of those actions, it was not such an error that probably caused the rendition of an improper judgment or prevented HelpinstiU from properly presenting his case to this court. Tex.R.App.P. 44.1(a). We therefore overrule points of error one and six.

HelpinstiU argues in point of error seven that the trial court erred in refusing to submit his requested jury questions one through four on the grounds that the proposed jury questions were a controlling issue in the case. HelpinstiU’s requested jury questions one through three inquire whether Longview National Bank/Regions Bank and HelpinstiU agreed that he would be liable for Brown’s unauthorized conduct of check-kiting, whether he failed to comply with the agreement, and, if so, whether his failure to comply was excused. We do not agree with Helpinstill’s position that his liability for Brown’s overdrafts ceased when Brown began his check-kiting scheme. Consequently, the proposed questions concerning whether the bank and HelpinstiU agreed that he would be liable for Brown’s check-kiting has no relevance in determining Helpinstill’s UabUity. Therefore, the trial court did not err in failing to submit those questions.

Jury question four inquired whether HelpinstiU benefited from the checks or deposits charged back by the bank in January 1997 to the MBO account. Inasmuch as HelpinstiU is liable to the bank for the overdrafts made by Brown in the ordinary course of MBO’s business, the question as to whether he individually benefited is of no legal relevance in determining Helpins-tiU’s UabUity. Consequently, the trial court did not err in failing to submit this question to the jury. We overrule point of error seven and affirm the judgment.

ROSS, J, not participating.


author: SAM J. DAY, Justice.

text:
    TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellant, v. Jeffrey Michael HARRIS, Appellee.
    No. 2-00-096-CV.
    Court of Appeals of Texas, Fort Worth.
    Nov. 16, 2000.

      Kevin M. Givens, Texas Dept, of Public Safety, Austin, for Appellant.
    Morris & Morris, L.L.P., S. Rafe Foreman, Flower Mound, for Appellee.
    Panel B: DAY, LIVINGSTON, and GARDNER, JJ.
   OPINION

SAM J. DAY, Justice.

The Texas Department of Public Safety (“DPS”) appeals a probate court ruling reversing an administrative law judge’s (“ALJ”) decision to uphold the suspension of Jeffrey Michael Harris’s driver’s license. In two points, the DPS challenges the probate court’s interpretation of whether an arrest was required for the suspension of a driver’s license, and in the alternative, the DPS argues that there was a valid arrest.

We reverse the probate court’s order and render judgment affirming the ruling of the ALJ.

I. BACKGROUND

On September 7, 1999, Officer Dena Williams stopped Harris for a burnt out headlight. During the stop, Officer Williams noticed a smell of alcohol, saw that Harris’s eyes were bloodshot and glassy, and noticed that Harris spoke “with a thick tongue.” Harris admitted that he had drunk two beers at which time Officer Williams administered the horizontal gaze nystagmus test. Harris exhibited two clues of intoxication. Officer Williams then issued Harris a citation for being a minor driving under the influence of alcohol and called Harris’s mother to prevent the car from having to be towed and Harris from having to go to jail. Officer Williams detained Harris until his mother and sister arrived, at which time Harris was released into his mother’s custody. Officer Williams testified that Harris was under arrest until his release to his mother.

The ALJ found that there was reasonable suspicion to stop and probable cause to arrest Harris and that Harris was driving a motor vehicle in a public place with a detectable amount of alcohol in his system. Therefore, the ALJ found that the DPS had sustained its burden of proof under section 524.035 of the transportation code and that Harris was subject to license suspension. In a footnote, however, the ALJ concluded Harris was not arrested. Harris appealed this decision to the probate court. The probate court agreed with the ALJ’s statement that Harris was not arrested and reversed the administrative decision to suspend Harris’s driver’s license on the basis that an arrest was required.

II. JURISDICTION

Harris argues that this court lacks jurisdiction over this appeal because there is no specific grant of jurisdiction to appellate courts in the transportation code or the Administrative Procedure Act (“APA”) and this case does not involve an amount in controversy over $100. We disagree.

Chapter 524 of the transportation code provides for the appeal of an administrative decision. Tex.Transp.Code Ann. § 524.041. Under section 524.041(b), a suspension affirmed by the ALJ may be appealed to the county court at law. If there is no county court at law in the county in which the person was arrested,. then the decision may be appealed to the county court. If the county judge is not a lawyer, then the case must be transferred to the district court upon the motion of either party or the judge. Id. § 524.041(b). Section 524.041(d) limits the department’s right to an administrative appeal to issues of law. Id. § 524.041(d). However, this is the only guidance chapter 524 gives as to the judicial review of administrative decisions. Therefore, we must look at the APA for further clarification. Tex.Gov’t Code Ann. §§ 2001.001-.902 (Vernon 2000).

Chapter 524 of the transportation code states that the APA applies to proceedings under that chapter “to the extent consistent with” chapter 524. Tex.Transp.Code Ann. § 524.002(b). The purpose of the APA is to restate the law of judicial review of state agency action. Tex.Gov’t Code Ann. § 2001.001.

The APA grants a person who has exhausted their administrative remedies and received a final decision in a contested case the right to judicial review. Id. § 2001.171. However, the APA states that “[a] party may appeal a final district court judgment under this chapter in the manner provided for civil actions generally.” Id. § 2001.901(a) (emphasis added). A literal reading of this language could lead to the conclusion that a case heard in the district court would be appealable, but one heard in the county court would not be. Such an interpretation would not produce the just and equitable result we are to presume the legislature intended in enacting the statute. Id. § 311.021 (Vernon 1998); Shirley v. Tex. Dep’t of Pub. Safety, 974 S.W.2d 321, 323 (Tex.App.—San Antonio 1998, no pet.) (holding that contrary reading would create disparate results); see also Barshop v. Medina County Underground Water Conservation Dist., 925 S.W.2d 618, 629 (Tex.1996) (explaining that courts should not read a statute to create an absurd result). Accordingly, we decline to read section 2001.901 so narrowly. Furthermore, there is precedent for our exercise of jurisdiction over license suspension cases. See Mireles v. Tex. Dep’t of Pub. Safety, 9 S.W.3d 128, 132 (Tex.1999); Tex. Dep’t of Pub. Safety v. O’Donnell, 998 S.W.2d 650, 654 (Tex.App.—Fort Worth 1999, no pet.) (op. on reh’g). Therefore, we hold that we have jurisdiction over this appeal and overrule Harris’s jurisdictional argument.

III. ARREST WAS IRRELEVANT

Harris asserts that his driver’s license could not be suspended because the DPS did not prove that he was arrested. Chapters 524 and 724 of the transportation code require the DPS to prove different elements in a suspension hearing. See Todd v. State, 956 S.W.2d 777, 778 (Tex.App.—Waco 1997, pet. ref'd) (noting that issues at license suspension hearings differ depending on whether the hearing is held under chapter 524 or chapter 724). Compare Tex.Transp.Code Ann. § 524.085(a) with Tex. TraNSp.Code Ann. § 724.042. Under a chapter 724 license suspension hearing, the DPS must prove that the person was placed under arrest. Tex.Transp.Code Ann. § 724.042. However, section 524.035 requires no such proof. In this case, section 524.035 required the DPS to prove only that: (1) Harris had a detectable amount of alcohol in his system while operating a motor vehicle in a public place; (2) he was a minor; and (3) Officer Williams had a reasonable suspicion to stop or probable cause to arrest him. Id. § 524.035(a).

In construing a statute, we are to give the words used their ordinary meanings and, if possible, ascertain the Legislature’s intent from the language used in the statute. Tex.GoVt Code Ann. § 312.002(a) (Vernon 1998); Natl Liab. & Fire Ins. Co. v. Allen, 15 S.W.3d 525, 527 (Tex.2000). Every word of a statute must be presumed to have been used for a purpose, and every word excluded from a statute must also be presumed to have been excluded for a purpose. Cameron v. Terrell & Garrett, Inc., 618 S.W.2d 535, 540 (Tex.1981); Moore v. Brown, 993 S.W.2d 871, 874 (Tex.App.—Fort Worth 1999, pet. denied). In this case, the Legislature could have included a requirement that the DPS prove arrest to sustain a license suspension under chapter 524, but instead chose to exclude it. Accordingly, we can conclude that the Legislature intended to require the DPS to prove arrest to sustain a license suspension under chapter 724, but did not intend to impose this requirement on the DPS in a license suspension proceeding under chapter 524. Therefore, we hold that the DPS was not required to prove that Harris had been arrested in order to suspend his license.

To support his contention that an arrest is required, Harris relies in part on the fact that the ALJ said in a footnote to his judgment that Harris was not arrested. However, the ALJ was required to sustain DPS’s suspension of Harris’s driver’s license if the ALJ found in the affirmative on each of the elements listed in section 524.035. Because the ALJ found in the affirmative on each of these elements, the ALJ sustained the suspension. Whether Harris was arrested was not an issue DPS had to prove to sustain the license suspension. Because section 524.035(a) did not require the DPS to prove that Harris had been arrested, we hold that the language in the footnote constitutes mere surplus-age and is not a finding or conclusion that alters the suspension of his driver’s license in any way. See, e.g., Hamilton v. Rice, 15 Tex. 382, 384 (1855); Wal-Mart Stores, Inc. v. Garcia, 974 S.W.2d 83, 87-88 (Tex.App.—San Antonio 1998, no pet.) (holding that a jury’s notations on a verdict form were irrelevant to review the jury’s findings). Therefore, we sustain Appellant’s first issue.

IV. CONCLUSION

Harris did not challenge the ALJ’s findings on any of the issues the DPS was required to prove under chapter 524, so the trial court should have upheld the ALJ’s ruling. Instead, the trial court incorrectly concluded that the DPS also had to prove Harris was arrested. Therefore, having sustained DPS’s first point and overruled Harris’s jurisdictional argument, we reverse the probate court’s judgment reversing the ALJ’s order. We render judgment upholding the ALJ’s order that the DPS is authorized to suspend or deny Harris’s driving privileges for 60 days.

      . See Tex.Alco.Bev.Code Ann. § J06.041 (Vernon Supp.2000). Harris was 20 years old at the time of the incident; however, the Transportation Code, unlike the Family Code, classifies an individual under 21 years of age as a minor for purposes of license revocation. Compare Tex.Fam.Code Ann. § 52.027(i) (Vernon Supp.2000) with Tex.Transp.Code Ann. § 524.001(c)(l l)(Vernon 1999).

      . Several courts of appeals, however, have held they do not have jurisdiction over such appeals. Tex. Dep’t of Pub. Safety v. Callen-der, 14 S.W.3d 319, 324 (Tex.App.—Houston [14th Dist.] 1999, pet. filed); Tex. Dep’t of Pub. Safety v. Barlow, 992 S.W.2d 732, 741 (Tex.App. — Waco 1999, pet. granted). For the reasons stated above, we decline to follow these decisions.

      . Because the DPS was not required to prove Harris was arrested, we need not address the arrest issue. We also need not address Harris’s argument that this court lacks jurisdiction to consider whether he was arrested.


author: FRANK C. PRICE, Justice (Assigned).

text:
    Howard Vanzandt WILLIAMS, Appellant, v. Dana BROWN and James Gonzales, Appellees.
    No. 01-98-01105-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Nov. 16, 2000.
    Rehearing Overruled Dec. 14, 2000.
    Howard VanZandt Williams, Rosharon, pro se.
    Dana Brown, Darrington Unit Officer, Rosharon, pro se.

      Panel consists of Justices O’CONNOR, HEDGES, and PRICE.

       The Honorable Frank C. Price, former Justice, Court of Appeals, First District of Texas at Houston, participating by assignment.

   OPINION

FRANK C. PRICE, Justice (Assigned).

In five points of error, Howard Van-Zandt Williams, the appellant, challenges the dismissal of this inmate case. We reform the judgment and affirm.

PROCEDURAL BACKGROUND

The appellant, an inmate in the Darring-ton Unit of the Texas Department of Criminal Justice (TDCJ), filed a petition in district court naming Darrington correctional officers Dana Brown and James Gonzalez as respondents. The appellant alleged Brown and Gonzalez did not want the appellant working in the laundry area, had excluded him from working in that area, and had filed false disciplinary charges against him in retaliation for his filing grievances and reporting misconduct. The appellant also alleged, in so doing, Brown and Gonzalez conspired to inflict cruel and unusual punishment on him.

With the petition, the appellant filed an unsworn declaration of previously filed suits indicating he had at least five previous or pending suits, two of which alleged retaliatory disciplinary charges. The appellant filed an affidavit of inability to pay costs. Although the appellant stated he was filing a copy of his inmate trust fund account receipt, it is not part of the record on appeal.

The trial court rendered an order of dismissal. The trial court stated it appeared

that the cause [was] frivolous or malicious because Petitioner has failed to state a claim that has an arguable basis in law or in fact as required by Section 13.001(b)(2) Civ. Prac. Rem.Code and/or Section 14.003, Civ. Prac. Rem.Code and/or the Petitioner failed to follow the provisions of Section 14.004, Civ. Prac. Rem [sic] Code.

The order of dismissal stated the “cause is dismissed with/without prejudice to the refiling of the same.” Neither “with” nor “without” was indicated.

DISCUSSION

The appellant’s lawsuit is subject to the requirements of chapter 14 of the Civil Practice and Remedies Code. Thompson v. Henderson, 927 S.W.2d 323, 324 n. 1 (Tex.App.—Houston [1st Dist.] 1996, no writ). In reviewing the trial court’s decision to dismiss a case subject to chapter 14, an appellate court applies an abuse-of-discretion standard of review. Hickson v. Moya, 926 S.W.2d 397, 398 (Tex.App.—Waco 1996, no writ); see Clark v. J.W. Estelle Unit, 23 S.W.3d 420, 421 (Tex.App.—Houston [1st Dist.] 2000, pet. filed) (applying abuse-of-discretion standard to dismissal under Civil Practice and Remedies Code section 14.004); Samuels v. Strain, 11 S.W.3d 404, 406 (Tex.App.—Houston [1st Dist.] 2000, no pet.) (applying abuse-of-discretion standard to dismissal on grounds of frivolousness under section 14.003(a)). Similarly, a trial court’s decision on whether to hold a hearing is discretionary. Thomas v. Wichita Gen. Hosp., 952 S.W.2d 936, 938 (Tex.App.—Fort Worth 1997, pet. denied). A trial court abuses its discretion if it acts without reference to guiding rules or principles. Samuels, 11 S.W.3d at 406.

In issue five, the appellant challenges the trial court’s dismissal of his suit on the ground he had not followed the requirements of Civil Practice and Remedies Code section 14.004. That section provides:

(a) An inmate who files an affidavit or unsworn declaration of inability to pay costs shall file a separate affidavit or declaration:
(1) identifying each suit, other than a suit under the Family Code, previously brought by the person and in which the person was not represented by an attorney, without regard to whether the person was an inmate at the time the suit was brought; and
(2) describing each suit that was previously brought by:
(A) stating the operative facts for which relief was sought;
(B) listing the case name, cause number, and the court in which the suit was brought;
(C) identifying each party named in the suit; and
(D) stating the result of the suit, including whether the suit was dismissed as frivolous or malicious under Section 13.001 or Section 14.003 or otherwise.
(b) If the affidavit or unsworn declaration filed under this section states that a previous suit was dismissed as frivolous or malicious, the affidavit or un-sworn declaration must state the date of the final order affirming the dismissal.
(c) The affidavit or unsworn declaration must be accompanied by the certified copy of the trust account statement required by Section 14.006(f).

Tex.Civ.PRAc. & Rem.Code Ann. § 14.004 (Vernon Supp.2000).

The appellant filed an affidavit of inability to pay costs. He did not, however, attach a certified copy of his trust account statement as required by section 14.004(c). In his unsworn declaration of previously filed suits, the appellant stated that “a copy of his inmate trust fund account receipt as required by the laws of the State of Texas, [is] attached and marked as exhibit C.” Although exhibits A and B are included in the record, there is no exhibit C. The absence of the certified copy of the trust fund account takes on significance in light of the appellant’s representations he was required to pay appellate court costs in a previous federal suit and is paying partial filing fees in a pending case in federal district court.

The trial court did not abuse its discretion in dismissing the appellant’s claim on the ground he had not complied with section 14.004. We overrule the appellant’s issue five.

The dismissal order, however, does not state whether the dismissal is with or without prejudice. “Dismissal with prejudice constitutes adjudication on the merits and operates as if the case had been fully tried and decided.” Lentworth v. Trahan, 981 S.W.2d 720, 722 (Tex.App.—Houston [1st Dist.] 1998, no pet.). The proper order in the present case is dismissal without prejudice.

We reform the judgment to reflect the cause is dismissed “without prejudice.” As reformed, the judgment is affirmed.

      . Given our resolution of issue five, we need not address issues one through four, in which the appellant challenges the trial court's decision, without holding a hearing, to dismiss the lawsuit on the grounds of frivolousness.


text:
    Lawrence Edward THOMPSON, Appellant, v. TEXAS DEPARTMENT OF CRIMINAL JUSTICE-INSTITUTIONAL DIVISION, Appellee.
    No. 01-98-01215-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Nov. 16, 2000.
    Rehearing Overruled Jan. 11, 2001.

      Lawrence E. Thompson, Huntsville, for Appellant.
    Karen Ray, Austin, for Appellee.
    Panel consists of Justices O’CONNOR, HEDGES, and PRICE.

       The Honorable Frank C. Price, former Justice, Court of Appeals, First District of Texas at Houston, participating by assignment.

   OPINION

FRANK C. PRICE, Justice (Assigned).

Lawrence Edward Thompson, the appellant, challenges the dismissal of this inmate case. We reform the judgment and affirm.

BACKGROUND

The appellant, an inmate of the Estelle Unit of the Texas Department of Criminal Justice-Institutional Division (TDCJ-ID), filed a petition in district court naming TDJC-ID as respondent. The appellant alleged his claim was brought under the Texas Tort Claims Act. Referring to events dating back to July 21, 1994, the appellant alleged negligent implementation of TDCJ-ID rules, regulations, and policies concerning racial integration of two-person cells and negligent implementation of TDCJ-ID disciplinary rules, regulations, and policies. Finally, he alleged TDCJ-ID employees violated his federal and state constitutional rights when they (1)refused to “racially-restrict” him based on his religious beliefs; (2) used racially-integrated housing in retaliation for the appellant’s having used the grievance procedure; (3) charged the appellant with refusing to obey orders instead of refusing a housing assignment thereby denying him due process; (4) conspired to charge the appellant with disciplinary offenses by assigning him to a racially integrated cell because of his use of the grievance procedure; (5) retaliated against him based on his race, religious beliefs, and TDCJ-ID officials’ beliefs the appellant is a racist and a gang member; and (6) assigned the appellant to racially integrated housing knowing the appellant would refuse the assignment and would be denied parole consideration.

The trial court held a hearing, at which the appellant stated his religious beliefs restricted him from being housed with anyone not of his own race. The appellant also acknowledged the basis of his lawsuit was that it was unconstitutional to house him with anyone other than a person of his own race. The trial court dismissed the lawsuit from the bench. The appellant then filed a motion to vacate judgment, among other matters, alleging (1) he was a member of the Lost-Found Nation of Islam, (2) one of the basic tenets of his religious beliefs was no integration, and (3) the trial court had not considered his First Amendment right to free exercise of religion. The trial court signed an order dismissing the appellant’s lawsuit as frivolous under Texas Civil Practice and Remedies Code section 14.003. The trial court, nevertheless, held a hearing on the appellant’s motion to vacate judgment and denied the motion. The order of dismissal indicated it was “with prejudice.”

DISCUSSION

In a single issue, the appellant argues the trial court abused its discretion when it dismissed his cause as frivolous. A judge may dismiss a suit brought in forma pauperis by finding that it is frivolous or malicious. Tex.Civ.Prac. & Rem. Code Ann. §§ 14.002, 14 .003(a)(2) (Vernon Supp.2000). Under Civil Practice and Remedies Code section 14.003(b), the court, in determining whether an action is frivolous or malicious, may consider whether:

(1) the claim’s realistic chance of ultimate success is slight;
(2) the claim has no arguable basis in law or in fact;
(3) it is clear that the party cannot prove a set of facts in support of the claim; or
(4) the claim is substantially similar to a previous claim filed by the inmate because the claim arises from the same operative facts.

Tex.Civ.Prac. & Rem.Code Ann. § 14.003(b) (Vernon Supp.2000). Under decisional law, however, the proper factor among factors (1) through (3) is whether the complaint “lacks an arguable basis in law or in fact.” Johnson v. Lynaugh, 796 S.W.2d 705, 706 (Tex.1990) (per curiam opinion denying writ). In reviewing the trial court’s decision to dismiss a case on the grounds of frivolousness, an appellate court applies an abuse-of-discretion standard of review. See Samuels v. Strain, 11 S.W.3d 404, 406 (Tex.App.—Houston [1st Dist.] 2000, no pet.) (applying abuse-of-discretion standard to dismissal on grounds of frivolousness under section 14.003(a)).

On appeal, the appellant argues the Estelle Unit officials negligently implemented the prison’s administrative directives governing cell assignments and violated his freedom of religion by housing him with an inmate of a different race. The appellant further asserts Estelle Unit Officials did not follow the administrative directives designed to separate inmates based on racial differences.

Prisoners do not have the same rights as others, and courts are ill-suited to detailed management of the state prisons. Hector v. Thaler, 927 S.W.2d 95, 98 (Tex.App.—Houston [1st Dist.] 1996, writ denied). In Hector, this Court held an inmate had no arguable basis in law when he complained TDCJ officials were not enforcing the regulations in the Inmate Orientation Manual. Id. The state law does not recognize a right for damages for prison officials’ negligent or even grossly negligent failure to enforce rules applicable to the inmates. See id. at 97. Like the inmate’s claim in Hector, the appellant’s claim of negligent enforcement has no arguable basis in law.

Although the appellant, a member of the Lost Found Nation of Islam, claims his right to freedom of religion has been violated, he has not shown how his cell assignment has prevented the practice of his religion. Additionally, the Estelle Unit Administrative Directive does not contain a policy which states prisoners have the right to choose their cell mates. Cell assignments are at the discretion of the prison administration. The administrative directive was set up to aid prison administration in determining where and how to place cell mates.

Finally, the appellant has not cited a single precedent holding that a prison’s attempt to house an inmate with someone of a different race violates the First Amendment, and this Court has found no such precedent. The appellant has presented no claim that has an arguable basis in law.

We overrule the appellant’s sole issue.

The dismissal order, however, states the dismissal is with prejudice. The proper order in the present case is dismissal without prejudice. See Lentworth v. Trahan, 981 S.W.2d 720, 722 (Tex.App.—Houston [1st Dist.] 1998, no pet.).

We reform the judgment to provide the cause is dismissed without prejudice. As reformed, the judgment is affirmed.

      . Texas Civil Practice and Remedies Code section 14.003(b) applies to inmates’ causes of action accruing on or after June 8, 1995. Thompson v. Henderson, 927 S.W.2d 323, 324 n. 1 (Tex.App.—Houston [1st Dist.] 1996, no writ). Section 14.003(b)(2) is identical to Texas Civil Practice and Remedies Code section 13.001(b)(2), which governed causes of action predating June 8, 1995.


author: DAVID L. RICHARDS, Justice.

text:
    CITY OF WICHITA FALLS, Appellant, v. Mary Elizabeth PEARCE, Kirby Kellog, Cheryl Bourgoin, David Delong, Randy Germany, and Paul Matlock, Appellees.
    No. 2-00-229-CV.
    Court of Appeals of Texas, Fort Worth.
    Nov. 16, 2000.
    Rehearing Overruled Jan. 4, 2001.

      Larry Lambert, Gregory D. Humbach, Wichita Falls City, Wichita Falls, for Appellant.
    Strasburger & Price, David J. Labrec, Jacqueline S. Kelly, Wichita Falls, for Ap-pellee.
    Panel A: CAYCE, C.J., RICHARDS and HOLMAN, JJ.
   OPINION

DAVID L. RICHARDS, Justice.

Introduction

This is an appeal from the trial court’s decision overruling Appellant City of Wichita Falls’s plea to the jurisdiction. Appellees are residents of an area called the “Kovarik Road Area.” The City of Wichita Falls (hereinafter “The City”) annexed this area into its city limits on November 6, 1997. Appellees filed suit on August 21, 1998 seeking disannexation. The City filed a plea to the jurisdiction, which was overruled by the trial court. The City argues in one issue that the trial court erred by overruling its plea to the jurisdiction. We will reverse and render judgment.

Statement of Facts

Ordinance 106-97, which annexed the Kovarik Road Area into the city limits, was passed on October 7, 1997 and became effective on November 6, 1997. An annexation service plan was included in the ordinance providing for the extension of municipal services to the area. On May 26, 1998, a majority of the residents of the Kovarik Road Area filed a petition for disannexation with the City of Wichita Falls. The City failed to disannex the area within sixty days of the filing of the petition. Appellees then brought this suit.

Reason for Disannexation

Appellees claim they are entitled to dis-annexation because the service plan adopted by the City is facially invalid. Specifically, they allege that the service plan does not provide for the extension of full municipal services because the plan provides that extensions of water and wastewater systems must be paid for by the residents themselves. They also argue, in the alternative, that the City has failed to perform its obligations under the service plan in good faith.

Subject Matter Jurisdiction

The legislature has provided that a lawsuit may be brought by citizens where the disannexation is sought on grounds that the municipality failed to perform its obligations in accordance with the service plan or failed to perform in good faith. Tex.LoC.Gov’t Code Ann. § 43.141(b) (Vernon Supp.2000). Appellees, however, are not contending that the City failed to perform in accordance with the service plan. They are instead arguing that the service plan is invalid, on its face. This is an attack on the validity of the annexation ordinance and attached service plan and is, therefore, not governed by section 43.141(b).

Absent specific legislative authorization, the only proper method for attacking the validity of a city’s annexation of territory is through a quo warranto proceeding, unless the annexation is wholly void. Alexander Oil Co. v. City of Seguin, 825 S.W.2d 434, 436 (Tex.1991). Instances in which a private challenge will be allowed because the annexation ordinance is void are those where the municipality exceeds its authority to annex. Id. at 438. Examples of these instances include: annexing territory that exceeds statutory size limitations, attempting to annex territory within the corporate limits of another municipality, attempting to annex territory that is not contiguous with current city limits, and describing territory in such a way that the boundary of the annexed area does not close. Id. A challenge to the adequacy of the service plan cannot be brought in a private challenge; it must be raised in a quo warranto proceeding. Id.

While it may seem harsh that residents actually affected by annexation cannot challenge the ordinance on their own behalf, there are strong policy reasons behind this rule. If private challenges were allowed, numerous suits by various property holders could be brought. Because often the validity of the annexation turns on an issue of fact, successive suits could lead to the anomalous situation where neighboring property owners were bound by drastically different judgments. Kuhn v. City of Yoakum, 6 S.W.2d 91, 92 (Tex.Comm’n App.1928, judgm’t adopted). Requiring the State to bring these challenges allows one judgment binding all the property owners involved and settles the validity of the ordinance. Id.

Because the proper remedy is a quo warranto proceeding, the trial court had no jurisdiction to consider appellees’s complaints. See Tomlinson v. Williamson, 243 S.W. 287, 288 (Tex.Civ.App.—El Paso 1922, writ dism’d w.o.j.); see generally Bute v. League City, 390 S.W.2d 811 (Tex.Civ.App.—Houston 1965, no writ). We sustain the City’s issue.

Conclusion

Having sustained the City’s issue because the trial court lacked subject matter jurisdiction to hear the underlying suit, we reverse and render judgment granting the City’s plea to the jurisdiction and dismissing the case.