A temporary restraining order will be granted without notice only if it clearly appears from specific facts shown in the verified application that the applicant will suffer immediate and irreparable injury, loss, or damage before notice can issue and a hearing can be held. Tex. R. Civ. P. 680. This form seeks both a temporary restraining order and a subsequent temporary injunction. No separate application for a temporary injunction is included in this manual, because a temporary injunction and a temporary restraining order are usually sought simultaneously. In most counties, the clerk will prepare the temporary restraining order. In some cases, the attorney may wish to prepare it for the clerk. See form 8-28 in this chapter. For further discussion, see sections 8.36 and 8.37. See section 14.2 in this manual regarding exercising caution in pleading conditions precedent.
[Caption. See § 3 of the Introduction in volume 1 of this manual.]
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Use the same caption as in the original petition unless the cause has been transferred. |
Application and Affidavit for Temporary Restraining Order and Temporary Injunction
1.Parties. [Name of plaintiff], Plaintiff, whose address is [address, city, state], makes this Application for Temporary Restraining Order and Temporary Injunction. Defendant is [name of defendant], who can be served with citation at [address, city, state]. [Include if applicable: Third-Party Defendant is [name of party possessing defendant’s property], who can be served with citation at [address, city, state].]
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State specific facts relied on by the plaintiff to warrant issuance of the restraining order and the temporary injunction. The following paragraph is a sample allegation; the actual allegations must be drafted to fit the facts. |
2.Facts. In this suit, now pending in this Court, Plaintiff is seeking damages from Defendant. Plaintiff lent Defendant $5,000 and received Defendant’s promissory note for that amount. On December 31, 2017, Defendant defaulted on the note. The sum of $4,800, representing principal and interest, remains due and unpaid on the debt. Plaintiff believes that Defendant’s assets are being secreted and placed beyond Plaintiff’s reach. This belief is based on the fact that, after Defendant was served with Plaintiff’s original petition in this cause, Defendant stated to Plaintiff that, unless Plaintiff withdrew this suit, Defendant would liquidate his business property and hide the proceeds and all cash now in Defendant’s bank accounts in another state.
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State grounds for issuance of the restraining order and the temporary injunction. The following paragraph is a sample allegation of grounds; the actual allegations must be drafted to fit the facts. |
3.Grounds. Plaintiff will suffer immediate and irreparable injury, loss, or damage if Defendant’s conduct described above is not enjoined for these reasons: Defendant will not be able to satisfy the judgment that will probably be rendered in Plaintiff’s favor in this suit; Defendant lacks nonexempt property with which to satisfy the judgment; Defendant has demonstrated unwillingness to pay Plaintiff’s claim; and this conduct of Defendant will result in Defendant’s not having assets subject to execution.
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The following paragraph will be suitable for most applications, but ensure that these allegations fit the specific situation. |
Plaintiff does not have an adequate remedy at law because if Defendant’s conduct continues Defendant will not have assets to satisfy an award of damages, because proceedings such as sequestration and garnishment will be more costly to Plaintiff than will injunctive relief, and because these proceedings will not be effective until after Defendant has placed most or all of Defendant’s assets beyond Plaintiff’s reach. Plaintiff has exercised due diligence in prosecuting this claim. The injury to Plaintiff if Defendant continues the conduct described above would outweigh any injury the restraining order and injunction might cause Defendant, and issuance of the restraining order and injunction would not disserve the public interest.
4.Conditions Precedent. All conditions precedent have been performed or have occurred.
5.Prayer. Plaintiff prays that—
a.without notice to Defendant [include if applicable: or Third-Party Defendant], the Court issue a temporary restraining order restraining Defendant [include if applicable: or Third-Party Defendant] and [his/their] officers, agents, servants, and employees from directly or indirectly [describe conduct to be restrained, e.g., transferring or removing any of Defendant’s funds or other property in Third-Party Defendant’s possession];
b.the Court set a date and time for a hearing on this application for a temporary injunction;
c.Defendant be cited to appear and answer;
d.after hearing, the Court issue a temporary injunction enjoining Defendant [include if applicable: or Third-Party Defendant] and [his/their] officers, agents, servants, and employees from directly or indirectly [describe conduct to be restrained, e.g., transferring or removing any of Defendant’s funds or other property in Third-Party Defendant’s possession] during the pendency of this action;
e.Plaintiff be granted reasonable expenses incurred in obtaining the restraining order and injunction; and
f.Plaintiff be granted all further relief to which Plaintiff may be entitled.
[Name]
Attorney for Plaintiff
State Bar No.:
[E-mail address]
[Address]
[Telephone]
[Telecopier]
Affidavit
BEFORE ME, the undersigned authority, on this day personally appeared [name of affiant], who swore on oath that the following facts are true:
“I am [Plaintiff/[other capacity, e.g., credit manager of Plaintiff]] in this cause. I have personal knowledge of the facts stated above, and they are true and correct. [Include if affiant is agent: I am authorized to make this affidavit and to apply for injunctive relief on behalf of Plaintiff.]”
[Name of affiant]
Affiant
SIGNED under oath before me on ________________________________.
Notary Public, State of Texas