4/29/2019 8:02 AM

Velva L. Price
District Clerk
Travis County
D-1-GN-19-002002
Cause No. D-1-GN-19-002002 Jonathan Sanders

STATE OF TEXAS, § IN THE DISTRICT COURT

§
Plaintiff, §
§
v. §
§ TRAVIS COUNTY, TEXAS
DAVID POLSTON and INLAND §
ENVIRONMENTAL AND §
REMEDIATION, INC., and INLAND §
RECYCLING, L.L.C., §
§
Defendant. § 53rd JUDICIAL DISTRICT

STATE’S MEMORANDUM OF LAW REGARDING

TEMPORARY INJUNCTION STANDARDS
FOR STATUTORY ENFORCEMENT

The State of Texas (“State”), by and through its Attorney General, on behalf of the

people of Texas and the Texas Commission on Environmental Quality (“TCEQ”) files this

memorandum of law in support of its application for temporary injunctive relief.

I. Summary of Applicable Law

• The Texas Water Code specifically provides for temporary injunctive relief.

• The State need only prove a present or threatened statutory violation–not

imminent injury, irreparable injury, or inadequate remedy at law.

• Preserving the status quo does not mean allowing violations of the law.

• Equitable arguments are inapplicable.

• Defendants’ violations warrant temporary injunction.

• The State is exempt from posting bond.

 II. The Texas Water Code specifically provides for temporary injunctive relief.

This is a civil statutory enforcement action by the State of Texas involving

unauthorized discharges into Skull Creek, a tributary of the Colorado River in Colorado

County, Texas. Defendants David Polston, Inland Environmental and Remediation, Inc.,

and Inland Recycling, L.L.C. caused, suffered, allowed, or permitted the discharge of

waste into or adjacent to waters in the state; caused pollution of state waters; engaged in

unauthorized disposal of industrial solid waste or municipal hazardous waste; created a

nuisance; endangered public health and welfare; and failed to immediately contain a spill

or discharge.

Authority for temporary injunction is found in Texas Water Code § 7.032(d):

In a suit brought under this section to enjoin a violation or threat of violation . . . ,

the court may grant the commission, without bond or other undertaking, any
prohibitory or mandatory injunction the facts may warrant, including a temporary
restraining order and, after notice and hearing, a temporary injunction or
permanent injunction.

III. The State need only prove a present or threatened statutory violation—not
imminent injury, irreparable injury, or inadequate remedy at law.

Generally, to obtain a temporary injunction, the applicant must prove a valid cause

of action against the defendant, a probable right to relief, and imminent, irreparable

injury in the interim. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002). However,

if the applicant proves a violation of a statute that authorizes injunctive relief, the

common law elements of imminent threat, irreparable injury, and inadequate remedy at

law do not apply. 8100 North Freeway Ltd. v. City of Houston, 329 S.W.3d 858, 861 (Tex.
Memorandum of Law Regarding Temporary Injunction Standards for Statutory Enforcement 2
State of Texas v. David Polston, et al.
App.—Houston [14th Dist.] 2010, no pet.); West v. State, 212 S.W.3d 513, 518-19 (Tex.

App.—Austin 2006, no pet.). Where the facts conclusively show a party is violating the

substantive law, it is the duty of the court to enjoin the violation; and in such cases there

is no discretion to be exercised. Jim Rutherford Invs., Inc. v. Terramar Beach Cmty. Ass’n, 25

S.W.3d 845, 848 (Tex. App.—Houston [14th Dist.] 2000, pet. denied); Priest v. Tex. Animal

Health Comm’n, 780 S.W.2d 874, 876 (Tex. App.—Dallas 1989, no writ).

IV. Preserving the status quo does not mean allowing violations of the law.

In a temporary injunction hearing, the only question before the Court is the right

to preserve the status quo pending trial on the merits. Transp. Co. of Tex. v. Robertson

Transps., Inc., 261 S.W.2d 549, 552 (Tex. 1953). Yet, the status quo to be preserved “can

never be a course of conduct which is a prima facie violation of law.” DeNoie v. Bd. of

Regents of Univ. of Tex. Sys., 609 S.W.2d 601, 603 (Tex. Civ. App.—Austin 1980, no writ).

“[C]ourts are not required to bide their time and wait until the parties see fit to

discontinue their unlawful acts.” Magnolia Petroleum Co. v. State, 218 S.W.2d 855, 860 (Tex.

Civ. App.—Austin 1949, writ ref’d n.r.e.). Instead, courts have the duty to issue

prohibitive or mandatory injunctive relief to restrain illegal conduct. Houston Compressed

Steel Corp. v. State, 456 S.W.2d 768, 773 (Tex. Civ. App.—Houston [1st Dist.] 1970, no writ).

Memorandum of Law Regarding Temporary Injunction Standards for Statutory Enforcement 3

State of Texas v. David Polston, et al.
 V. Equitable arguments are inapplicable.

When a statute is being violated, the “doctrine of balancing the equities has no

application.” State v. Tex. Pet Foods, Inc., 591 S.W.2d 800, 805 (Tex. 1979). In such a case,

the State is entitled to injunctive relief by proving the statute’s violation. Id.

VI. Defendants’ violations warrant temporary injunction.

The evidence at the temporary injunction hearing will show that the Defendants

have “caused, suffered, allowed, or permitted” violations the Texas Water Code, and

TCEQ rules relating to the storage, processing, collection, handling, management,

disposal, and/or discharge of solid waste, industrial solid waste, and municipal

hazardous waste.

VII. The State is exempt from posting bond.

The State is exempt from the requirement of posting bond for costs incident to a

suit filed pursuant to Civil Practice and Remedies Code § 6.001(a), including a bond to

secure a temporary injunction. Vibber v. Unauthorized Practice Comm., 575 S.W.2d 88, 89

(Tex. Civ. App.—Houston [14th Dist.] 1979, no writ.).

Memorandum of Law Regarding Temporary Injunction Standards for Statutory Enforcement 4

State of Texas v. David Polston, et al.
 ACCORDINGLY, the foregoing legal authorities applied to the evidence admitted

at the temporary injunction hearing compel the conclusion that the Court should grant

the temporary injunction requested by the State.

Respectfully submitted,

KEN PAXTON
Attorney General of Texas

JEFFREY C. MATEER
First Assistant Attorney General

DARREN L. MCCARTY
Deputy Attorney General for Civil Litigation

PRISCILLA M. HUBENAK
Chief, Environmental Protection Division

PHILLIP LEDBETTER
State Bar No. 24041316
Assistant Attorney General
Phillip.Ledbetter@oag.texas.gov

/s/ J. Amber Ahmed

J. AMBER AHMED
Assistant Attorney General
State Bar No. 24080756
Amber.Ahmed@oag.texas.gov

AMY RODRIGUEZ
Assistant Attorney General
State Bar No. 24103107
Amy.Rodriguez@oag.texas.gov

Memorandum of Law Regarding Temporary Injunction Standards for Statutory Enforcement 5

State of Texas v. David Polston, et al.
 OFFICE OF THE ATTORNEY GENERAL OF TEXAS
ENVIRONMENTAL PROTECTION DIVISION
P.O. Box 12548, MC-066
Austin, Texas 78711-2548
Telephone: (512) 463-2012
Facsimile: (512) 320-0911

ATTORNEYS FOR THE STATE OF TEXAS

Memorandum of Law Regarding Temporary Injunction Standards for Statutory Enforcement 6

State of Texas v. David Polston, et al.
 CERTIFICATE OF SERVICE

On April 29, 2019, a true and correct copy of the State’s Memorandum of Law
Regarding Temporary Injunction Standards for Statutory Enforcement was served on the
following counsel by eservice and email:

Darrel L. Barger
dbarger@hartlinebarger.com

Victor L. Cardenas Jr.

vcardenas@hartlinebarger.com

Pryce G. Tucker
ptucker@hartlinebarger.com

HARTLINE BARGER LLP

1980 Post Oak Blvd., Suite 1800
Houston, Texas 77056
8750 North Central Expressway, Suite 1600
Dallas, Texas 75231

James D. Smith
Jim@smithtexaslaw.com

Smith Law Firm

550 Westcott Street, Suite 250
Houston, Texas 77007
Phone: (713) 652-3200
Fax: (713) 652-3201

ATTORNEY FOR DAVID POLSTON, INLAND ENVIRONMENTAL AND

REMEDIATION, INC., AND INLAND RECYCLING, L.L.C.

/s/ J. Amber Ahmed

J. AMBER AHMED
Assistant Attorney General

Memorandum of Law Regarding Temporary Injunction Standards for Statutory Enforcement 7

State of Texas v. David Polston, et al.