Lloyd A. Fry Roofing Company v. State

No. 18970 (541 S.W.2d 639) (Tex. Civ. App. August 12, 1976)

ELR Digest

The court affirms the trial court's order, which temporarily enjoined the operator of a plant manufacturing asphalt shingles from violating the regulation of the Texas Air Control Board which limits opacity of emissions. In so doing, the court finds that both the injunction and the regulation are sufficiently specific to give notice of the contested conduct, and the evidence is sufficient to support the trial court's finding of a violation. The temporary injunction had been granted after this court reversed a final judgment in favor of the state for injunctive relief and statutory penalties under the Texas Clean Air Act, Tex. Rev. Civ. Stat. Ann. art. 4477-5 (Vernon Supp. 1974) and had remanded the matter for further proceedings.

The court turns first to the validity of the Board's regulation under which appellant was charged. A regulation has the presumption of validity. Appellant claimed the regulation is too vague to give notice of conduct which may be in violation. Appellant's contentions, however, are based on the alleged vagueness of "uncombined water," a term which has a technical meaning in the specialized field of air pollution control. The regulation directs that "uncombined water" be excluded from determinations of opacity. The court construes the term in light of the record of the case. Testimony failed to elicit confusion over the use of the term "uncombined water;" thus, the trial court could properly determine that, for purposes of issuing an injunction, the term was sufficiently definite to give notice of its meaning. The court further dismisses appellant's charges that the regulation is being discriminatorily interpreted and the measuring methodology is inherently inaccurate because the margins of error did not exceed the permitted allowance. The court also rejects appellant's charges of unlimited discretion on the part of the Board's observers because the evidence failed to support the charge. Appellant failed to carry the burden that the Board's regulation was so arbitrary that the trial court abused its discretion in granting the temporary injunction.

The court next turns to the validity of the injunction and finds it sufficiently specific regarding the actions to be restrained, Tex. R. Civ. P. 683. The allowed margin of error for opacity observers does not deprive the order of the required specificity. When, as here, the purpose of the injunction is to protect the public, the test of required specificity is reasonableness, and doubt should be resolved against the violator. Overall, the evidence submitted by the state supported the trial court's findings.

In overruling all of appellant's points of error and affirming the order granting the temporary injunction, the court notes that it does not determine any issue that may be presented at the final trial on the merits. The trial court should have set the case for an early trial on the merits because the Texas Clean Air Act provides that a suit brought under it "shall be given precedence over all cases of a different nature." Tex. Rev. Civ. Stat. Ann. Art. 4477-5, § 4.04(c) (Vernon Supp. 1974). An expedited trial would have disrupted the court calendar less than the hearing on the temporary injunction because a decision from a hearing is not binding on the merits, and a more complete record would be established in a plenary trial.

The full text of this opinion is available from ELR (10 pp. $1.25, ELR Order No. C-1100).

Counsel for Appellant
Jack Pew, Jr.
D.L. Case
Jackson, Walker, Winstead, Cantwell & Miller
43rd Floor, First National Bank Bldg.
Dallas TX 75202
(214) 742-8451

Counsel for Appellee
John L. Hill, Attorney General
W. Thomas Buckle, Asst. Attorney General
Supreme Court Bldg.
Austin TX 78701
(512) 475-4643

Guittard, J.

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]