D. PRIEST and VAN ZANDT COMMISSION COMPANY, Appellant v. TEXAS ANIMAL HEALTH COMMISSION, Appellee

Dissenting Opinion filed November 6, 1989
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-88-01417-CV
............................
D. PRIEST and VAN ZANDT COMMISSION COMPANY, Appellant
V.
TEXAS ANIMAL HEALTH COMMISSION, Appellee
 
.................................................................
On Appeal from the 294th District Court
Van Zandt County, Texas
Trial Court Cause No. 87-389
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O P I N I O N
Before Justices Howell, Thomas, and Ovard
Dissenting Opinion By Justice Howell
        I dissent. The majority opinion will not stand up to close analysis.
        (1) The majority concludes by affirming on grounds that "the trial court did not abuse its discretion." The wrong test has been applied. Summary judgment will not lie unless the movant shows his entitlement thereto as a matter of law. It is error to award an injunction through the summary judgment process unless the movant's proof is such that the trial court is wholly without discretion. Only where the summary judgment evidence is such that it demonstrates that the denial of relief would be a clear abuse of discretion may a permanent injunction be entered in response to a motion for summary judgment. Otherwise, as in the case at hand, the movant has not met his burden to show that he is entitled to recover, as a matter of law.
        (2) At the outset, the majority recites a four-fold test that the movant must satisfy in order to obtain a permanent injunction. This dissent will assume for the time being that the State sufficiently proved the existence of unlawful conduct. However, the record is bereft of any showing upon the other three elements, imminent harm, irreparable injury, and no adequate remedy at law. After firmly declaring that such a showing is required, the majority has no comment on the State's failure to make a showing upon the three latter elements which it has held (and correctly so) to be necessary.
        (3) The majority declares that injunction is a discretionary remedy and declares that appellate review is "limited to the question whether the action constituted a clear abuse of discretion." However, all of the cases cited involved the issuance of an injunction following a trial on the merits. As already stated, in order to fulfill the summary judgment requirement that the movant show himself entitled to judgment "as a matter of law," the movant must have demonstrated to the trial court that it was without discretion to deny the injunction. FN:1
 
        It is rare that a plaintiff by motion for summary judgment is able to meet, as a matter of law, the rigorous demands of the equity which must be satisfied before an injunction may issue. Equitable relief is discretionary relief. The trial court must engage in a balancing of the equities. In the ordinary instance, the applicant must plead and prove that he has no adequate remedy at law. Equity will not, in the ordinary instance, engage in the enforcement of the criminal law. It is further well established that he who seeks equity must do equity, that equity aids the vigilant, that equity will not do a vain or useless thing, and that equity only exacts restitution, never vengeance.
        The plaintiff Commission appears to rely on two statutes for exemption from the principles of equity ordinarily applicable in cases such as this. Neither statute expressly entitles state officials or state agencies to equitable relief except in compliance with the rules of general application. It is a well established principle that the state, its agencies, and its officials enter court and litigate on the same basis and subject to the same requirements of law as private individuals. We should be very slow to read into the statutes in question any special provisions in favor of the Commission.
        The first of the statutes invoked is, by far, the most specific in its application. Section 161.131 of the Texas Agriculture Code provides that "any citizen" may sue to enjoin violations of "this chapter." Tex. Agric. Code Ann. § 161.131(a) (Vernon 1982). However, it is doubtful if that statute has any application because it expressly exempts subchapter F, being sections 161.111 through 161.116 entitled "Regulation of Livestock Markets." It appears that the violations found by the majority simply do not fall within the injunction provision of the code.
 
        Seemingly, the Commission would sidestep this problem by arguing that it seeks to enjoin violations of its rules (which do little or nothing more than parrot the provisions of the statutes) rather than violations of the statute pertaining to "Livestock Markets." Id. §§ 161.111 - 161.116. However, it is well settled that an administrative agency has no power to adopt rules that defeat the plain meaning of statutes.
        When we search for the rule-making authority of the Commission, we find that the statutes contain several grants to the Commission of authority to promulgate rules. First of all, the exempted subchapter contains rule-making authority. Id. §§ 161.111 - 161.116. However, if there is no authority to enforce the statute by injunction, there can be no authority to enforce by injunction the rule-making authority contained in the same statute. After all, water can rise no higher than its source.
        Other parts of the same chapter describe the powers and duties of the Commission, and contain additional provisions authorizing entry and granting rule making power. There are also provisions outside of the exempted subchapter relating to the inspection, treatment, quarantine, and sale or marketing of diseased animals.
        Another chapter of the Code, entitled "Livestock Commission Merchants," contains, among other things, record-keeping and inspection provisions. Id. §§ 147.001-147.065 (Vernon 1982 & Vernon Supp. 1989). Still another chapter entitled "Brucellosis Control Areas," sections 163.001 through 163.087, contains further provisions relating to rule-making, entry, reports, testing, branding, and handling of diseased animals. Id. §§ 163.001-163.087 (Vernon 1982 & Vernon Supp. 1989).
        The Commission would apparently argue that the rules upon which it relies were not promulgated under authority of section 161.112, a portion of "this chapter" to which the injunction provision is expressly inapplicable. Presumably, the argument is that the rules were adopted under authorizations found elsewhere from sections 161.111 through 161.116 and that the rules are therefore not affected by the no-injunction proviso of section 161.131(a).
        The easy answer to this argument is that the specific controls over the general. Inasmuch as the statutory scheme expressly makes the injunction provision inapplicable to "Livestock Markets" and to the rule making authority pertaining to "Livestock Markets," we must hold that the Commission may not subvert the clear statutory command through the adoption of rules pertaining to "Livestock Markets" on the basis of generalized rule-making authority contained elsewhere in the Code. Any other construction operates to nullify a clear declaration of legislative intent. Tex. Agric. Code Ann. § 161.131(a) (Vernon 1982).
        The other statutory authorization for injunctive relief upon which the Commission would rely is contained in the Administrative Procedure and Texas Register Act. Tex. Rev. Civ. Stat. Ann. art. 6252-13a, § 19A (Vernon Supp. 1989). This statute has such broad and general application that we must be slow indeed to import into it any special prerogatives on the part of the State, its officials, and its agencies to obtain injunctive relief. We must hold that this latter statute is no more than a general statement of principle that the State, its agencies, and its employees may obtain injunctive relief wherever the usages of equity forged out over the centuries make injunctive relief available and appropriate.
        The foregoing analysis cannot, by any means, be interpreted as a holding that the statutes just discussed preclude the Commission from injunctive relief. Sections 65.001 through 65.031 of the Texas Civil Practice and Remedies Code generally regulate the availability of injunction for all litigants. Tex. Civ. Prac. & Rem. Code Ann. §§ 65.001-65.031 (Vernon 1986); see also Tex. R. Civ. P. 693. This analysis of the injunction statutes returns to the point from which it departed. No, this defendant and its operations as a livestock commission market are not wholly exempt from being forced through the issuance of an injunction to comply with the Agriculture Code. Yes, the writ is available on suit by the Commission. However, the Commission enters the courts of this State on the same basis as any other litigant, being neither more entitled nor less entitled to injunctive relief than any other citizen.
        One reservation must be made to the foregoing statement. A state official or agency cannot be held to the exacting standard of irreparable injury to which a private litigant is generally held. Where a public official is expressly charged with the enforcement of a regulatory scheme, if we were to hold that he must show irreparable injury to himself, to state property or to the state treasury, we would obviously be effectively denying the State, and those through whom it must act, of injunctive relief in virtually all cases. The irreparable injury requirement is satisfied on behalf of the State when it shows the threat of clear, immediate and substantial injury, of an irreparable nature, to the protected class or to a specific group through violation of the regulatory provision which the State officer or agency is charged by law to enforce. Thus, the irreparable injury requirement was satisfied in the case of Gluck v. Texas Animal Health Comm'n, 501 S.W.2d 412, 415 (Tex. Civ. App.--San Antonio 1973, writ ref'd n.r.e.). In that case, the landowner refused to allow his cattle to be tested for brucellosis. The trial court issued an injunction via motion for summary judgment. The appellate court affirmed: "[I]rreparable harm would be threatened to the cattle industry of Frio County if appellant cannot be compelled to comply with the statute." An outbreak of the disease was then manifest in the area and all herds were being mandatorily tested. In order to control the spread of the infection, immediate and widespread testing was imperative. The irreparable injury requirement was satisfied. Id.
        Having outlined the principles upon which this case should be decided, this dissent turns to the specifics. Our majority has found that the defendant committed two violations of the Agriculture Code. On several occasions, defendant refused to allow inspection of his records by Commission personnel. Proof that the infraction occurred and that it was repeated does not necessarily prove irreparable injury. In fact there was no showing that defendant was attempting to hide the fact that he was engaged in the practice of dealing in diseased cattle, if such be the real contention of the plaintiff Commission. By his affidavit, defendant has offered the following explanation of his conduct:
        I have previously understood from other livestock barn owners that they were sued by animal owners for revealing or producing records. I now understand that such records are public in nature and must be produced at all times upon request. . . . I have no intention of violating the laws of the State of Texas in the future.
        By its summary judgment, the trial court has deprived defendant of the opportunity to present his testimony in person to the trier of fact. Had the trier of fact believed that defendant was sincere and credible, had the trier of fact decided that no harm was done, had the trier of fact decided that future violations were unlikely, did the trier of fact possess the discretion, after the plenary hearing, to deny injunctive relief to the Commission? Of course, he did. By the same measure, it was error to enter a summary judgment in this case. It is not the office of summary judgment to substitute trial by affidavit for trial upon the merits with live witnesses for both sides. The office of summary judgment is limited to the elimination of patently unmeritorious claims.
        The other violation found against defendant was that a herd containing two diseased animals passed through defendant's premises without being branded in accordance with the rules and statutes. However, unlike Gluck, the cattle in question had gone far from defendant's premises when summary judgment was rendered. Our trial court could do naught but enjoin future conduct of a similar nature. However, there was no claim of any continued pattern of activity, no claim that defendant routinely allowed diseased cattle to be sold through his premises, or even that defendant or anyone in authority at defendant's premises knew that the cattle in question were either subject to the disease or that they had not been branded as suspects.
        It is not to be doubted that the statute imposes affirmative duties on a livestock market operator. He has the affirmative duty to see to it that diseased cattle are not sold through his premises in violation of the law. However, in the absence of some showing of dereliction of duty, in the absence of some showing of the threat of future violations of the same sort, the trial court after hearing the evidence in full must deny injunctive relief upon this count. The Commission has not made prima facie proof of its entitlement to an injunction simply by proving one single past incident and offering no evidence of culpability and no evidence of any likelihood of recurrence.
        Injunction is a harsh remedy and must be carefully regulated and confined to proper cases. Raine v. Searles, 302 S.W.2d 486, 487 (Tex. Civ. App.--El Paso 1957, no writ). Injunctions are issued only to prevent imminent harm. Lloyd v. Alaska Worldwide, Inc., 550 S.W.2d 343, 348 (Tex. Civ. App.--Dallas 1977, no writ). In the absence of a showing that the acts complained of probably will occur again, acts occurring prior to the suit will not furnish a basis for injunctive relief. Edgar v. Glenn W. Turner Enterprises, 487 S.W.2d 847, 849 (Tex. Civ. App.--Austin 1972, no writ); see Knopf v. Standard Fixtures Co., 581 S.W.2d 504, 506 (Tex. Civ. App.--Dallas 1979, no writ); Burklund v. Hackett, 575 S.W.2d 389, 392 (Tex. Civ. App.--Tyler 1978, no writ). The purpose of injunctive relief is to halt wrongful acts that are threatened or in the course of accomplishment, rather than to grant relief against past actionable wrongs or to prevent the commission of wrongs not imminently threatened. Texas Employment Comm'n v. Martinez, 545 S.W.2d 876, 877 (Tex. Civ. App.--El Paso 1976, no writ).
        At the trial upon the merits, the Commission will further be burdened to present evidence that it has no adequate remedy at law. A corollary to this rule provides that the remedy of injunction is not available to prevent violations of the criminal law. Each of the infractions for which defendant has been enjoined is punishable as a misdemeanor. In addition, sections 147.021 through 147.029 of the Agriculture Code require defendant to provide a bond. Suit on the bond is an available recourse with respect to some, if not all, of the infractions here alleged. Tex. Agric. Code Ann. §§ 147.021-147.029 (Vernon 1982). The Commission has asked for and received injunctive relief without a showing that it ever sought these statutory remedies or why they would not be effectual. Without such a showing, the Commission is not entitled to injunctive relief.
        Gluck does not hold to the contrary. The real thrust of Gluck is that the immediacy of the situation -- the ongoing spread of an epidemic -- required relief that the criminal law could not expeditiously provide. If Gluck made any broader ruling, it should be disavowed. If the Commission desires to bypass the remedies set forth on the face of the statute, it must explain its reasons for doing so. Without an adequate explanation, injunction must be denied.
        Again, the objective of equity is restitution, not vengeance. For the refusal to allow the inspection of records upon request, as required by law, a fine is a singularly appropriate remedy. Why did the Commission forgo such a plain and apparently adequate remedy? The record is entirely silent. Likewise, isolated instances of misbranding can be addressed by the criminal law. Until and unless the Commission adequately explains its failure to seek these remedies, injunction must be denied.
        I therefore dissent. For the reasons given, this case must be reversed and remanded for trial upon its merits.
 
                                                          
                                                          CHARLES BEN HOWELL
                                                          JUSTICE
 
Publish
Tex. R. App. P. 90
881417DF.P05
 
FN:1 The majority states that "where the facts conclusively show a party is violating the substantive law it becomes the duty of the court to enjoin the violation," citing City of Houston v. Memorial Bend Util. Co., 331 S.W.2d 418, 422 (Tex. Civ. App.--Houston [1st Dist.] 1960, writ ref'd n.r.e.). However, a reading of Memorial Bend reveals that its declaration was far too broad. In that case, a utility company unilaterally increased its monthly rates in violation of a valid city ordinance. The defendant utility gave every indication that it intended to continue charging its unlawful rates unless restrained. The appellate court, finding the ordinance valid, held that the trial court committed a clear abuse of discretion in refusing a temporary injunction. Laying aside the fact the Memorial Bend only involved a temporary injunction, there are many differences from the case at hand, particularly with respect to proof that the defendant's unlawful conduct would continue unless enjoined and the lack of a showing of irreparable injury.
File Date[11-15-89]
File Name[881417DF]