§ 65.041.Bond Not Required for Issuance of Temporary Restraining Order for Certain Indigent Applicants

The first of a subchapter written for one situation, and it is a narrow but real exception.

A court may not require an applicant for a temporary restraining order to execute a bond where the applicant submits an affidavit meeting the requirements of Section 65.043 and the court finds that the order is intended to restrain the adverse party from foreclosing on the applicant’s residential homestead.

The problem the subchapter addresses is a circular one. A homeowner facing foreclosure applies for a restraining order; the rules require a bond; the homeowner cannot post one precisely because of the financial trouble that produced the foreclosure.

So the remedy was available only to those who did not need it most, and the subchapter breaks the circle.

The exception is confined in three ways. To a temporary restraining order; to foreclosure; and to the applicant’s residential homestead.

An investment property, a second home or a business premises is outside it, however severe the consequences of losing them.

The homestead limit is not arbitrary. Texas protects the homestead more strongly than any other asset, and the subchapter extends that protection into the procedure for defending it.

The affidavit is where the applicant earns the exemption, and it is exacting — complete financial information about everyone liable on the debt or holding an interest in the home.

Notably, an affidavit for a restraining order may not be contested. The contest provision permits challenges only to the temporary injunction affidavit, so relief at this stage is immediate.

That sequencing is sensible. A restraining order is short and urgent; the contest belongs at the injunction hearing, where there is time for it.