America v. Texas Comptroller of Public Accounts, et al.

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
FREDDIE AMERICA
v.
TEXAS COMPTROLLER OF PUBLIC
ACCOUNTS, et al.
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NO. 4:25-CV-01361-SDJ-BD
ORDER AND REPORT AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
On December 9, 2025, plaintiff Freddie America, also known as Freddie Luis Lopez, sued the
acting Texas Comptroller of Public Accounts, Kelly Hancock, challenging an administrative rule
addressing Texas’s historically underutilized businesses program. Dkt. 1; see Tex. Gov’t Code
ch. 2161 (establishing the program). Concurrently with his complaint, America moved for a
temporary restraining order (“TRO”) and preliminary injunction. Dkt. 2. Hancock has not yet
been served or made an appearance. The court will recommend that America’s motion be denied
to the extent it requests a TRO and will defer a ruling on the motion for a preliminary injunction.
The court will withdraw the order it issued yesterday. Dkt. 4.
BACKGROUND
The historically underutilized businesses program was created by the Texas legislature in 1999
to govern state procurement and contracting procedures. An Act Relating to State Agency
Practices and Duties, Including Codification of Certain State Agency Practices and Duties
Currently Prescribed by the General Appropriations Act, S.B. 178, 76th Reg. Sess. (Tex. 1999).
The law defines a “historically underutilized business” as one owned by an “economically
disadvantaged person,” a term that encompasses “Black Americans,” “Hispanic Americans,”
“women,” “Asian Pacific Americans,” “Native Americans,” and “veterans . . . who have
suffered at least 20 percent service-connected disability.” Tex. Gov’t Code § 2161.001. The law
directs the comptroller to “seek the advice of the governor, legislature, and state agencies in
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identifying and developing opportunities for historically underutilized businesses”; “offer
historically 	underutilized 	businesses 	assistance 	and 	training 	regarding 	state 	procurement
procedures”; “advise historically underutilized businesses of available state contracts”; and
“send 	historically 	underutilized 	businesses 	an 	orientation 	package 	on 	certification 	or
recertification.” Id. § 2161.062. It also directs the comptroller to create a mentor–protégé program
for historically underutilized businesses, id. § 2161.065, and design forums for such businesses to
deliver presentations to state agencies, id. § 2161.066. State agencies and the comptroller are each
required to “make a good faith effort to increase the contract awards for the purchase of goods or
services that the agency expects to make during a fiscal year to historically underutilized
businesses.” Id. §§ 2161.181–.182.
According to the complaint, America owns a business that the comptroller previously certified
as historically underutilized. Dkt. 1 at 3. On December 2, 2025, Hancock announced that the
historically underutilized business program would be “restructured” to “focus[] exclusively on
small businesses owned and operated by veterans with a 20 percent or higher service-connected
disability.” Press Release, Tex. Comptroller of Pub. Accts., Acting Texas Comptroller Kelly
Hancock Announces Emergency Rules for Revamped VetHUB Program (Dec. 2, 2025). That rule
has not yet been published in the Texas Register. Because of the rule, America’s business is no
longer eligible for benefits under the program. Dkt. 1 at 5–6.
America argues that the rule is unconstitutional and inconsistent with Texas law. He asks the
court to enjoin its enforcement.
LAW
Federal Rule of Civil Procedure 65(b)(1) provides that
the Court may issue a temporary restraining order without written or oral notice to
the adverse party only if:
(A) specific facts in an affidavit or a verified complaint clearly show that immediate
and irreparable injury, loss, or damage will result to the movant before the adverse
party can be heard in opposition; and
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(B) the movant’s attorney certifies in writing any efforts made to give notice and
the reasons why it should not be required.
A TRO is “an extraordinary and drastic remedy.” Anderson v. Jackson, 556 F.3d 351, 360 (5th
Cir. 2009). TROs “should be restricted to serving their underlying purpose of preserving the
status quo and preventing irreparable harm just so long as is necessary to hold a hearing, and no
longer.” Granny Goose Foods, Inc. v. Bhd. of Teamsters, 415 U.S. 423, 439 (1974); see also Norman
Bridge Drug Co. v. Banner, 529 F.2d 822, 829 (5th Cir. 1976) (explaining that “the office of
a temporary restraining order is to preserve, for a very brief time, the status quo, so as to avoid
irreparable injury pending a hearing on the issuance of a preliminary injunction”).
There are four prerequisites to the entry of a TRO. The movant must demonstrate (1) a
substantial likelihood of success on the merits, (2) a substantial threat that the movant will suffer
irreparable injury if the injunction is denied, (3) that the threatened injury outweighs any damage
that the injunction might cause the defendant, and (4) that the injunction will not disserve the
public interest. Affiliated Pro. Home Health Care Agency v. Shalala, 164 F.3d 282, 285 (5th Cir.
1999); see Clark v. Prichard, 812 F.2d 991, 993 (5th Cir. 1987) (noting that the standards for TROs
and preliminary injunctions are the same). A party seeking injunctive relief must “unequivocally
show the need for its issuance,” Valley v. Rapides Parish Sch. Bd., 118 F.3d 1047, 1050 (5th Cir.
1997), by introducing sufficient evidence to justify the granting of a TRO, PCI Transp. Inc. v. Fort
Worth & W. R.R. Co., 418 F.3d 535, 546 (5th Cir. 2005). The movant must prove each of the four
elements before injunctive relief can be granted. See Miss. Power & Light Co. v. United Gas Pipe Line
Co., 760 F.2d 618, 621 (5th Cir. 1985). The decision to grant or deny a TRO lies within the court’s
discretion. Id.
DISCUSSION
I. 	America’s Motion for a TRO
Federal Rule of Civil Procedure 65(b)(1)(B) provides that a TRO may issue without notice to
the opposing party only if “the movant’s attorney certifies in writing any efforts made to give notice
and the reasons why it should not be required.” See Jones v. Bush, No. 3:00-cv-2543-D, 2000 WL
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1725195, at *1 (N.D. Tex. Nov. 20, 2000) (explaining that “[a]n ex parte [TRO] is granted only in
extraordinary circumstances where the party seeking such relief will suffer immediate and
irreparable injury not only by the failure to grant the [TRO] but by affording the restrained party
advance knowledge that such relief is to be entered”). Pro se plaintiffs are not excused from
compliance with that rule. Thomson v. Veterans United Home Loans, No. 4:25-cv-00545-MJT-CLS,
2025 WL 1784502, at *2 n.1 (E.D. Tex. May 28, 2025) (collecting cases), report and recommendation
adopted sub nom. Thompson v. Veterans United Home Loans, No. 4:25-cv-00545-MJT, 2025 WL
1782557 (E.D. Tex. May 30, 2025).
Nothing in America’s motion indicates that Hancock received actual notice of this action or
notice that America seeks ex parte relief. Nor does anything in the motion describe America’s
efforts to notify Hancock.
Failure to establish any TRO prerequisite defeats the right to relief. N. Miss. Med. Ctr., Inc. v.
Quartiz Techs., No. 23-60483, 2025 WL 980568, at *2 (5th Cir. Apr. 1, 2025) (citing Roho, Inc. v.
Marquis, 902 F.2d 356, 361 (5th Cir. 1990)). America’s failure to give notice or describe his efforts
to provide it warrants an order denying the motion. Thomson, 2025 WL 1784502, at *2.
II. The Court’s Previous Order to Pay the Filing Fee
America paid the filing fee with his complaint on December 9, 2025. Docket Entry for Dec. 9,
2025. But due to a clerical error, that fact was not reflected on the docket. On December 11, 2025,
the court ordered America to either pay the filing fee or move to proceed in forma pauperis, noting
that it would take no action until one of those things had happened. Dkt. 4. That order was
docketed at 4:02 p.m. on December 11, 2025. At 4:16 p.m. on December 11, 2025, the clerk entered
a docket entry reflecting America’s payment of the filing fee. The court’s previous order will be
withdrawn.
ORDER AND RECOMMENDATION
It is ORDERED that the order to pay the filing fee, Dkt. 4, is WITHDRAWN.
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It is RECOMMENDED that the motion for a TRO and preliminary injunction, Dkt. 2, be
DENIED to the extent it requests a TRO. The court will withhold ruling on America’s request for
a preliminary injunction until Hancock has appeared.
* 	* 	*
Within 14 days after service of this report, any party may serve and file written objections to
the findings and recommendations of the magistrate judge. 28 U.S.C. § 636(b)(1).
A party is entitled to a de novo review by the district court of the findings and conclusions
contained in this report only if specific objections are made. Id. § 636(b)(1). Failure to timely file
written objections to any proposed findings, conclusions, and recommendations contained in this
report will bar an aggrieved party from appellate review of those factual findings and legal
conclusions accepted by the district court, except on grounds of plain error, provided that the party
has been served with notice that such consequences will result from a failure to object. Id.; Thomas
v. Arn, 474 U.S. 140, 155 (1985); Douglass v. United Servs. Auto Ass’n, 79 F.3d 1415, 1417 (5th Cir.
1996) (en banc), superseded by statute on other grounds; 28 U.S.C. § 636(b)(1) (extending the time to
file objections from 10 to 14 days).
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