In Texas, it is not possible to make an affidavit based on belief alone. You must have knowledge of a fact in order for the affidavit to be valid under Texas law. To understand this better, let’s look at the 1996 case, Williams v. Bagley.
Legal Terminology
Texas Rules of Civil Procedure, Rule 682:
No writ of injunction shall be granted unless the applicant therefor shall present his petition to the judge verified by his affidavit and containing a plain and intelligible statement of the ground for such relief.
Probate Case
Williams v. Bagley, 875 S.W.2d 808 (Tex. App. – Beaumont 1996 , no writ).
Facts and Procedural History
The Appellees had been employees at the Montgomery County Sheriff’s Department under Sheriff Joe Corley. Corley chose not to run for reelection and Guy Williams was elected as the new sheriff. Williams informed some of the employees he would not be rehiring them. The appellees employment ended as soon as Corley retired. They were not terminated, just not rehired.
The appellees filed suit and, to prevent any further action by Williams, filed a temporary restraining order, which acted as a writ of injunction. The original petition, the temporary restraining order and the attempted amended order were all a mess when received. They had markings all over them that made crucial parts difficult to interpret. Even after piecing together what they could from the documents, no provision for a bond in connection with the temporary restraining order was made. The verification attached to the petition was interpreted to be on the belief of the affiant; meaning what the attorney believed it to be true.
Rule 682 is the governing rule for writs of injunction. It provides that a writ of injunction cannot be made unless it is presented to the judge containing a “plain and intelligible statement of the grounds for such relief.” It also provides that acting on “belief” is insufficient for a writ of injunction. It also provides that a specific bond amount is required to be given. Since this rule was not followed, the temporary restraining order was not valid.
The court also found that Williams was within his rights to hire on whatever staff made him feel comfortable. The mere fact that he did not rehire the appellees was completely within his rights.
Main Considerations
Can a writ of injunction be made on the belief of the affiant?
No. If the affiant is wrong in his beliefs, he could be preventing someone from participating in conduct that is completely within his or her rights which result in the affiant committing perjury. An affidavit must be made based on knowledge or fact to allow the affiant to be prosecuted for perjury if he is wrong.
Does an elected official have the right to not rehire staff from the last term?
Yes. The State of Texas indisputably gives elected county officials discretion to hire whatever staff they want.
Takeaways
Williams v. Bagley shows that affiants (those making affidavits) cannot make a writ of injunction on belief of the affiant and elected county officials can hire whatever staff they want.
Do you need to hire an Experienced Probate Attorney in El Paso?
If you have questions about making an affidavit or whether you have proper knowledge, it is best to consult with an experienced probate attorney in El Paso. An experienced attorney can advise you on the best way to proceed and can help ensure that your affidavit is given the weight it deserves by the court. (915) 292-4400.
Related questions
What are the requirements for an affidavit in Texas?
An affidavit in Texas must be sworn to or affirmed by the person making the statement, and must state that the person knows the information contained therein is true and correct. Affidavits are typically notarized.
What is Rule 190 of the Texas Rules of Civil Procedure (discovery)?
Rule 190 of the Texas Rules of Civil Procedure requires a Discovery Control Plan.
What is Rule 21a of the Texas Rules of Civil Procedure? Does it relate to summary judgment motions and standards?
Rule 21 requires the clerk on the filing of the motion to make the proper entries concerning it on the motion docket, and renders such filing and entry sufficient notice, since the motion is one in a pending suit. As these entries are to be made by the clerk, any failure to make them is the fault of the clerk.
What is a sincerely held religious belief?
A sincerely held religious belief is a belief that is deeply and sincerely held by an individual based on their religious faith. This type of belief often guides an individual’s actions and decisions in their daily life. In the state of Texas, an affidavit based on a sincerely held religious belief may be used in certain legal situations in order to assert one’s rights or beliefs.
How long does a civil lawsuit take in Texas?
It can take quite a while for a civil lawsuit to play out in Texas. The length of time it takes can vary depending on the specific facts of the case and how many parties are involved. It’s not uncommon for lawsuits to drag on for months or even years. This is one of the main reasons why people choose to settle their disputes outside of court.
