James Williams, TDCJ-ID No. 296974 v. Texas Department of Criminal Justice-Institutional Division (TDCJ-ID), et al.--Appeal from 278th District Court of Walker County

MEMORANDUM OPINION
No. 04-03-00774-CV
James WILLIAMS,
Appellant
v.

TEXAS DEPARTMENT OF CRIMINAL JUSTICE - INSTITUTIONAL DIVISION, Cynthia Wood, and Tim Morgan

Appellees
From the 278th Judicial District Court, Walker County, Texas
Trial Court No. 22,133
Honorable Erwin Ernst, Judge Presiding

Opinion by: Phylis J. Speedlin, Justice

Sitting: Catherine Stone, Justice

Paul W. Green, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: January 7, 2004

AFFIRMED

James Williams ("Williams") appeals the trial court's order denying his "Motion for Temporary Restraining Order and/or Preliminary Injunction." Because the issues in this appeal involve the application of well-settled principles of law, we affirm the trial court's order in this memorandum opinion under Tex. R. App. P. 47.4.

Applicable Law and Standard of Review

A temporary restraining order is generally not appealable. In re Tex. Nat. Res. Conserv. Comm'n, 85 S.W.3d 201, 205 (Tex. 2002). Therefore, we construe Williams's appeal as an appeal regarding the denial of his request for a temporary injunction.

The purpose of a temporary injunction is to preserve the status quo of the litigation's subject matter pending a trial on the merits. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002). A temporary injunction is an extraordinary remedy and does not issue as a matter of right. Id. In order to obtain a temporary injunction, an applicant must plead and prove the following: (1) a cause of action against the defendant; (2) a probable right to the relief sought; and (3) a probable, imminent, and irreparable injury in the interim. Id.; Walling v. Metcalfe, 863 S.W.2d 56, 57 (Tex. 1993).

We review the grant or denial of a temporary injunction for a clear abuse of discretion without addressing the merits of the underlying case. Walling, 863 S.W.2d at 58; Southwest Research Institute v. Keraplast Technologies, Ltd., 103 S.W.3d 478, 481 (Tex. App.--San Antonio 2003, no pet.). An appellate court should not substitute its judgment for that of the trial court unless the court's action was so arbitrary that it exceeded the bounds of reasonable discretion. Butnaru, 84 S.W.3d at 204.

Discussion

The only evidence offered by Williams in support of his motion is his own affidavit in which he states the facts surrounding the confiscation of his personal property, including legal materials and pleadings, by prison officials. Despite his requests, his personal property has not been returned. Williams states that the prison officials' retention of his personal property is causing him irreparable harm. With regards to his legal materials, Williams states that the pleadings removed from his cell represent months of legal research which were "almost ready to be filed" as part of his criminal conviction when they were taken. According to Williams, "[e]very day his pleadings and law books are out of [his] possession represents a day's delay in filing [his] case." Williams states that if the pleadings are lost, it will take him many months to reconstruct them.

Probable injury, a necessary element of injunctive relief, is proven through evidence of imminent harm, irreparably injury, and the lack of an adequate legal remedy. Friona Ind. Sch. Dist. v. King, 15 S.W.3d 653, 657 (Tex. App.--Amarillo 2000, no pet). Williams's affidavit suggests that the retention of his legal materials is delaying the filing of pleadings in his criminal conviction. There is no evidence, however, as to the nature of those pleadings, that they are time sensitive, or that they need to be immediately filed. Thus, the evidence does not prove imminent harm to Williams. We recognize Williams's concern that his pleadings could be lost. Yet, a party's fear and apprehension that another party might take or do certain actions are not sufficient to establish injury. See Markel v. World Flight, Inc., 938 S.W.2d 74, 79-80 (Tex. App.--San Antonio 1996, no writ). Similarly, there is simply no evidence to establish that the retention of two personal fans and other personal property will cause Williams imminent harm.

Based on the record and evidence in support of the motion, we cannot say Williams is subject to probable injury. Therefore, we hold that the trial court did not abuse its discretion in denying Williams's motion for temporary injunction.

We overrule Williams's sole issue on appeal and affirm the order of the trial court.

Phylis J. Speedlin, Justice