Harris County Texas v. Carmax Auto ( 1999 )


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  •                       REVISED, June 22, 1999
    
                   IN THE UNITED STATES COURT OF APPEALS
    
                           FOR THE FIFTH CIRCUIT
    
                           _____________________
    
                                No. 98-20709
                           _____________________
    
    
              HARRIS COUNTY TEXAS,
    
                                     Plaintiff-Appellee,
    
              v.
    
              CARMAX AUTO SUPERSTORES INC,
    
                                     Defendant-Appellant.
    
    _________________________________________________________________
    
               Appeal from the United States District Court
                    for the Southern District of Texas
    _________________________________________________________________
                               May 26, 1999
    
    Before KING, Chief Judge, and JOLLY and JONES, Circuit Judges.
    
    KING, Chief Judge:
    
         Defendant-appellant CarMax Auto Superstores, Inc. appeals
    
    the district court’s grant of a preliminary injunction
    
    prohibiting it from selling or offering for sale motor vehicles
    
    on consecutive days of Saturday and Sunday on the premises of its
    
    stores in plaintiff-appellee Harris County, Texas in violation of
    
    Texas Transportation Code § 728.002.    We find that Harris County
    
    is not bound by a prior state court injunction purporting to
    
    enjoin all enforcement of the statute and that, therefore, the
    
    district court’s injunction does not implicate the Anti-
    
    Injunction Act, 28 U.S.C. § 2283.    In addition, we conclude that
    
    the district court properly exercised jurisdiction over this
    action, that Harris County demonstrated a substantial likelihood
    
    of success on the merits, and that the issuance of the injunction
    
    did not violate Federal Rule of Civil Procedure 65(a)(1).
    
    Accordingly, we affirm.
    
                  I. FACTUAL AND PROCEDURAL BACKGROUND
    
         This procedurally tangled case concerns Chapter 728 of the
    
    Texas Transportation Code (the Blue Law) and the voluminous state
    
    and federal litigation brought both to enforce and challenge it.
    
    Section 728.002(a) provides:    “A person may not, on consecutive
    
    days of Saturday and Sunday:    (1) sell or offer for sale a motor
    
    vehicle; or (2) compel an employee to sell or offer for sale a
    
    motor vehicle.”   TEX. TRANSP. CODE ANN. § 728.002(a).   Section
    
    728.004 provides that the operation of a business in a manner
    
    contrary to this statute is a public nuisance and that the
    
    attorney general or a district, county, or municipal attorney may
    
    obtain an injunction restraining such a violation.       See id.
    
    § 728.004(a)-(b).
    
         In 1997, the El Paso Independent Automobile Dealers
    
    Association, Inc. (EPIADA), an organization of small car dealers,
    
    brought an action in state district court in El Paso, Texas to
    
    challenge the constitutionality of the Blue Law, naming the
    
    district and county attorneys of El Paso County and the city
    
    attorney of El Paso as defendants.    In accordance with state law,
    
    a copy of EPIADA’s petition was also served upon the attorney
    
    
    
    
                                      2
    general of Texas, see TEX. CIV. PRAC. & REM. CODE ANN. § 37.006(b),1
    
    who expressly declined to participate in the suit.
    
         After an evidentiary hearing, the El Paso district court
    
    determined that the classifications drawn in the Blue Law were
    
    not rationally related to the state legislature’s stated purpose
    
    and operated in an arbitrary and unjust manner by regulating only
    
    weekend sales of motor vehicles without any restrictions
    
    whatsoever on sales of such items as liquor, cigarettes, table
    
    dances, and lottery tickets.      See El Paso Indep. Auto. Dealers
    
    Ass’n, Inc. v. Esparza, No. 97-3425, slip op. at 6 (383rd Dist.
    
    Ct., El Paso County, Tex. Dec. 23, 1997) (findings of fact and
    
    conclusions of law).   Specifically, the court held:
    
         .     TEX. TRANS. CODE §§ 728.001 through 728.004 are hereby
               declared unconstitutional;
    
         .     All officials authorized by TEX. TRANS. CODE § 728.004 to
               enforce TEX. TRANS. CODE §§ 728.001 through 728.004 are
               hereby permanently enjoined from enforcing the
    
    
         1
             That statute provides:
    
         In any proceeding that involves the validity of a municipal
         ordinance or franchise, the municipality must be made a
         party and is entitled to be heard, and if the statute,
         ordinance, or franchise is alleged to be unconstitutional,
         the attorney general of the state must also be served with a
         copy of the proceeding and is entitled to be heard.
    
    TEX. CIV. PRAC. & REM. CODE ANN. § 37.006(b). Although this
    provision could be read to apply only to constitutional
    challenges to a municipal ordinance, as opposed to a state
    statute such as the Blue Law, it in fact pertains to such attacks
    on the latter as well. See Moore v. Morales, 
    63 F.3d 358
    , 360-61
    (5th Cir. 1995) (“[B]y statute, the State of Texas requires that,
    when the constitutionality of one of its laws is challenged, ‘the
    attorney general of the state must also be served with a copy of
    the proceeding and is entitled to be heard’. Tex.Civ.Prac. &
    Rem. Code § 37.006(b) . . . .”).
    
                                          3
              provisions of TEX. TRANS. CODE §§ 728.001 through 728.004
              unless the Texas Supreme Court shall
              subsequently rule that the statutes are constitutional.
    
    El Paso Indep. Auto. Dealers Ass’n, Inc. v. Esparza, No. 97-3425,
    
    slip op. at 1-2 (383rd Dist. Ct., El Paso County, Tex. Dec. 23,
    
    1997) (judgment).   In response, the attorney general and the
    
    Motor Vehicle Division of the Texas Department of Transportation
    
    filed a petition for a writ of mandamus with the state court of
    
    appeals in El Paso to set aside the district court’s order; the
    
    court denied the petition.   See In re Attorney Gen., No. 08-98-
    
    00021-CV (Tex. App.--El Paso Jan. 28, 1998, orig. proceeding).
    
    The attorney general and the Motor Vehicle Division then sought
    
    to appeal the district court decision.   EPIADA filed a motion to
    
    dismiss, alleging that since they were not parties of record in
    
    the underlying lawsuit, they had no right of appeal.   The state
    
    court of appeals held that while the attorney general and the
    
    Motor Vehicle Division were entitled to appeal because they were
    
    virtually represented by the El Paso officials, they had waived
    
    that right by specifically declining to participate in the case.
    
    See Attorney Gen. v. El Paso Indep. Auto. Dealers Ass’n, Inc.,
    
    
    966 S.W.2d 783
    , 785-86 (Tex. App.--El Paso 1998, no writ).   All
    
    appeals from the El Paso district court judgment and injunction
    
    have since been dismissed.
    
         In May 1998, after the El Paso court of appeals decision
    
    stating that the attorney general had waived his right to appeal,
    
    defendant-appellant CarMax Auto Superstores, Inc. (CarMax)
    
    informed plaintiff-appellee Harris County, Texas (Harris County
    
    
                                     4
    or the County) that it intended to keep its three Houston-area
    
    locations open on both weekend days.   On July 1, 1998, Harris
    
    County filed a state court application for a temporary
    
    restraining order, temporary injunction, and permanent injunction
    
    barring CarMax from violating the Blue Law.2   In its answer,
    
    CarMax conceded that during two weekends in June 1998, one of its
    
    Harris County stores sold or offered for sale motor vehicles on
    
    consecutive days of Saturday and Sunday and indicated that it
    
    intended to continue doing so.   Before the court could rule,
    
    however, CarMax removed the case to the United States District
    
    Court for the Southern District of Texas on the basis of
    
    diversity of citizenship.   On July 22, 1998, Harris County filed
    
    a first amended complaint and application for temporary
    
    restraining order and injunctive relief in federal court.   The
    
    district court held a two-hour hearing on July 27, 1998 and on
    
    July 31, 1998 granted an injunction ordering CarMax to “cease and
    
    desist from selling and offering for sale motor vehicles on
    
         2
            At the time, as it is today, CarMax was also involved in
    Blue Law litigation in the Northern District of Texas. In
    January 1998, CarMax filed suit there challenging the Blue Law’s
    constitutionality under both the state and federal constitutions.
    On June 10, 1998, Nichols Ford and the Texas Auto Dealers
    Association (TADA) filed a state action in Dallas against CarMax
    seeking to enforce the Blue Law. CarMax removed the suit to
    federal court, and it was transferred to the judge handling
    CarMax’s case in the Northern District of Texas. On June 25,
    1998, Prestige Ford also filed an action in state court in Dallas
    seeking to enforce the statute. CarMax removed the case to
    federal court, where the district judge denied Prestige’s
    application for a temporary restraining order barring violations
    of the Blue Law. Prestige Ford then filed a motion for voluntary
    dismissal of its action. Later, CarMax joined both the Dallas
    and Harris County enforcement officials to the remaining
    litigation pending in the Northern District of Texas.
    
                                     5
    consecutive days of Saturday and Sunday on the premises of its
    
    three automobile dealership outlets located . . . in Harris
    
    County” from the date of the order until final judgment on the
    
    merits.   CarMax appealed.3
    
                          II.     STANDARD OF REVIEW
    
         Any injunctive relief is considered “an extraordinary and
    
    drastic remedy, not to be granted routinely, but only when the
    
    movant, by a clear showing, carries the burden of persuasion.”
    
    White v. Carlucci, 
    862 F.2d 1209
    , 1211 (5th Cir. 1989) (quoting
    
    Holland Am. Ins. Co. v. Succession of Roy, 
    777 F.2d 992
    , 997 (5th
    
    
         3
            In addition, CarMax returned to the El Paso district
    court and filed an action naming the state of Texas and its
    attorney general, the Texas Department of Transportation, and the
    director of the Motor Vehicle Board as defendants. On August 20,
    1998, that court issued a temporary restraining order prohibiting
    the defendants from acting in any way in violation of the court’s
    prior judgment and injunction in El Paso Independent Automobile
    Dealers Ass’n, Inc. v. Esparza, No. 97-3425 (383rd Dist. Ct., El
    Paso County, Tex. Dec. 23, 1997) (judgment). See CarMax Auto
    Superstores, Inc. v. State, No. 98-2879, slip op. at 3 (383rd
    Dist. Ct., El Paso County, Tex. Aug. 20, 1998) (order granting
    temporary restraining order). Two months later, the court
    granted a preliminary injunction ordering that
    
         the State of Texas, the Honorable Dan Morales in his
         official capacity as Attorney General of Texas, the Texas
         Department of Transportation, and Brett Bray in his official
         capacity as Director of the Motor Vehicle Division are
         commanded forthwith to desist and refrain from attempting to
         enforce the provisions of TEX. TRANSP. CODE §§ 728.001 through
         728.004, individually and collectively, by themselves or
         through their agents, representatives, administrative
         agencies, political subdivisions and/or privies until
         judgment in this cause is rendered by this Court or the
         Texas Supreme Court reverses the decision of
         this court in Cause No. 97-4325.
    
    Carmax Auto Superstores, Inc. v. State, No. 98-2879, slip op. at
    2-3 (383rd Dist. Ct., El Paso County, Tex. Oct. 15, 1998) (order
    granting preliminary injunction).
    
                                        6
    Cir. 1985)).    A district court may grant a preliminary injunction
    
    only if the movant establishes four requirements:
    
         First, the movant must establish a substantial likelihood of
         success on the merits. Second, there must be a substantial
         threat of irreparable injury if the injunction is not
         granted. Third, the threatened injury to the plaintiff must
         outweigh the threatened injury to the defendant. Fourth,
         the granting of the preliminary injunction must not disserve
         the public interest.
    
    Cherokee Pump & Equip., Inc. v. Aurora Pump, 
    38 F.3d 246
    , 249
    
    (5th Cir. 1994) (citations omitted).      Each of these elements is a
    
    mixed question of fact and law; we review a district court’s
    
    findings of fact under a clearly erroneous standard and its
    
    conclusions of law de novo.       See Hoover v. Morales, 
    164 F.3d 221
    ,
    
    224 (5th Cir. 1998) (quoting Sunbeam Prods., Inc. v. West Bend
    
    Co., 
    123 F.3d 246
    , 250 (5th Cir. 1997), cert. denied, 
    118 S. Ct. 1795
     (1998)).    The ultimate issue, however, is whether the
    
    district court abused its discretion in granting the preliminary
    
    injunction.     See House the Homeless, Inc. v. Widnall, 
    94 F.3d 176
    , 180 (5th Cir. 1996).
    
                               III.    DISCUSSION
    
         On appeal, CarMax contends that the district court’s
    
    preliminary injunction was an abuse of discretion for four
    
    reasons:   (1) The El Paso injunction binds not only the named
    
    defendants, but all officials authorized to enforce the Blue Law,
    
    including the Harris County Attorney, and the federal injunction
    
    therefore interferes with the effect of a state court injunction
    
    
    
    
                                        7
    in violation of the Anti-Injunction Act, 28 U.S.C. § 2283;4
    
    (2) the district court erred in exercising jurisdiction over the
    
    action because prior, duplicative litigation was pending in the
    
    Northern District of Texas; (3) Harris County failed to establish
    
    a substantial likelihood of success on the merits; and (4) the
    
    district court issued the preliminary injunction in violation of
    
    Federal Rule of Civil Procedure 65(a)(1).    We address each of
    
    these arguments in turn.
    
    A.   Does the federal preliminary injunction violate the Anti-
         Injunction Act?
    
          Our first task is to determine whether the district court’s
    
    preliminary injunction violates the Anti-Injunction Act, which
    
    prohibits federal courts from granting injunctions “to stay
    
    proceedings in a State court.”    28 U.S.C. § 2283.   The Supreme
    
    Court has interpreted the Act to forbid federal injunctions
    
    “prohibiting utilization of the results of a completed state
    
    proceeding.”    Atlantic Coast Line R.R. Co. v. Brotherhood of
    
    Locomotive Eng’rs, 
    398 U.S. 281
    , 287 (1970).    That is, a federal
    
    court may not issue an injunction countermanding a state court
    
    injunction.    See id. at 283-85 (vacating a federal injunction
    
    that enjoined a railroad from invoking a state court injunction
    
    banning union picketing of a switching yard).    Thus, in this
    
    case, if the El Paso injunction binds Harris County, restraining
    
    
          4
            “A court of the United   States may not grant an injunction
    to stay proceedings in a State   court except as expressly
    authorized by Act of Congress,   or where necessary in aid of its
    jurisdiction, or to protect or   effectuate its judgments.” 28
    U.S.C. § 2283.
    
                                      8
    it from enforcing the Blue Law, then the federal injunction
    
    arguably prevents the use of a state court injunction and
    
    violates the Anti-Injunction Act.    If, on the other hand, the El
    
    Paso injunction does not apply to Harris County, then the federal
    
    injunction in no way conflicts with a state court injunction and
    
    does not implicate the Act at all.
    
         The crucial question, then, is whether the El Paso
    
    injunction binds Harris County and its officials.      There is no
    
    question that it purports to do so:      By its own terms, the
    
    injunction applies to “[a]ll officials authorized by TEX. TRANS.
    
    CODE § 728.004 to enforce TEX. TRANS. CODE §§ 728.001 through
    
    728.004,” a group consisting of “[t]he attorney general or a
    
    district, county, or municipal attorney,” TEX. TRANSP. CODE ANN.
    
    § 728.004(a).   CarMax urges us to take the injunction at face
    
    value, while Harris County maintains that it does not bind the
    
    County or any of its officials.
    
         We begin with Texas Rule of Civil Procedure 683, which
    
    provides that “[e]very order granting an injunction . . . is
    
    binding only on the parties to the action, their officers,
    
    agents, servants, employees, and attorneys, and upon those
    
    persons in active concert or participation with them who receive
    
    actual notice of the order by personal service or otherwise.”
    
    The Texas Supreme Court has stated that this rule means
    
         [a] decree of injunction not only binds the parties
         defendant but also those identified with them in interest,
         in “privity” with them, represented by them or subject to
         their control. In essence it is that defendants may not
         nullify a decree by carrying out prohibited acts through
    
    
                                         9
         aiders and abettors, although they were not parties to the
         original proceeding.
    
    Ex parte Chambers, 
    898 S.W.2d 257
    , 260 n.2 (Tex. 1995) (quoting
    
    Waffenschmidt v. Mackay, 
    763 F.2d 711
    , 717 (5th Cir. 1985)); see
    
    Regal Knitwear Co. v. National Labor Relations Bd., 
    324 U.S. 9
    ,
    
    14 (1945) (stating the same with respect to Federal Rule of Civil
    
    Procedure 65(d)).5
    
         It is apparent that neither Harris County nor any of its
    
    officials was a party to the El Paso district court action.    They
    
    were not named as defendants and, in fact, had no knowledge of
    
    the El Paso lawsuit.   The fact that the final judgment and
    
    permanent injunction purports to bind them does not confer party
    
    status, which “cannot be created at entry of judgment where none
    
    existed before by the mere inclusion of a person or entity in a
    
    judgment.”   Subsequent Injury Fund v. Service Lloyds Ins. Co.,
    
    
    961 S.W.2d 673
    , 677 (Tex. App.--Houston [1st Dist.] 1998, writ
    
    denied).
    
         Nor are Harris County and its county attorney officers,
    
    agents, servants, employees, or attorneys of the El Paso
    
    district, county, or city attorneys.   Rather, the officials of
    
    each county have parallel responsibilities within their own
    
    
         5
            Federal Rule of Civil Procedure 65(d) provides that
    “[e]very order granting an injunction . . . is binding only upon
    the parties to the action, their officers, agents, servants,
    employees, and attorneys, and upon those persons in active
    concert or participation with them who receive actual notice of
    the order by personal service or otherwise.” The Texas Supreme
    Court has described Texas Rule of Civil Procedure 683 as having
    been taken from this rule. See Ex parte Davis, 
    470 S.W.2d 647
    ,
    649 (Tex. 1971).
    
                                    10
    county.    Compare TEX. GOV’T CODE ANN. § 45.171(a) (“It is the
    
    primary duty of the county attorney in El Paso County or his
    
    assistants to represent the state, El Paso County, and the
    
    officials of El Paso County in all civil matters pending before
    
    the courts of El Paso County and any other courts in which the
    
    state, the county, or the officials of the county have matters
    
    pending.”), with id. § 45.201 (“It is the primary duty of the
    
    county attorney in Harris County or his assistants to represent
    
    the state, Harris County, and the officials of Harris County in
    
    all civil matters pending before the courts of Harris County and
    
    any other courts in which the state, the county, or the officials
    
    of the county have matters pending.”).
    
         Thus, if the El Paso injunction binds the County and its
    
    officials, it must do so under one of the theories recognized in
    
    Rule 683 or by the Supreme Court in Chambers.       That is, the
    
    County is bound if it is in active concert or participation with
    
    the El Paso officials, identified with them in interest, in
    
    privity with them, represented by them, or subject to their
    
    control.    The many different terms employed by the courts boil
    
    down to the fundamental principle that an injunction does not
    
    bind a non-party unless he stands in a special relationship to a
    
    party.    Discussing Federal Rule of Civil Procedure 65(d), one
    
    commentator has written that “[a]lthough the rule itself does not
    
    speak of ‘privity,’ the concept frequently is used by the federal
    
    courts as synonymous with the enumeration in Rule 65(d) of
    
    nonparties who may be bound.”     11A CHARLES ALAN WRIGHT   ET AL.,   FEDERAL
    
    
                                      11
    PRACTICE   AND   PROCEDURE § 2956, at 340 (1995) (emphasis added).   The
    
    general concept is that an injunction binds only non-parties who
    
    are “so identified in interest with those named in the decree
    
    that it would be reasonable to conclude that their rights and
    
    interests have been represented and adjudicated in the original
    
    injunction proceeding.”        Id. at 340-41.   In other words, the non-
    
    party must have constructively had his day in court:
    
          The central reason that one who is not a party to the action
          in which the injunction was issued cannot be bound by it is
          that he has not had his day in court with respect to the
          validity of the injunction. Absent an opportunity to
          contest liability, his knowledge of the injunction is not
          sufficient to bind him as an individual, as distinguished
          from prohibiting him from acting in the forbidden way on
          behalf of the enjoined party. Thus, the relevant inquiry is
          not merely whether (in addition to having knowledge of the
          injunction) [the person putatively bound] was a “key
          employee” of [the bound party] but whether he had such a key
          role in the corporation’s participation in the injunction
          proceedings that it can be fairly said that he has had his
          day in court in relation to the validity of the injunction.
    
    G. & C. Merriam Co. v. Webster Dictionary Co., 
    639 F.2d 29
    , 37
    
    (1st Cir. 1980) (citations omitted) (second emphasis added).
    
          According to CarMax, the El Paso court of appeals has
    
    already found that the attorney general of Texas and all
    
    district, county, and city attorneys in the state were in privity
    
    with and virtually represented by the El Paso officials and,
    
    therefore, were bound by the injunction.         See Attorney Gen., 966
    
    S.W.2d at 785.        That case, however, held no such thing.   Rather,
    
    it considered only one issue:         whether the attorney general of
    
    Texas and the Motor Vehicle Division of the Texas Department of
    
    Transportation could appeal the El Paso injunction.         The court
    
    first noted that while as a general rule, only parties of record
    
                                          12
    may exercise a right of appeal, a party who was not present in
    
    the trial court and who wishes to participate in the appeal may
    
    do so under the doctrine of virtual representation.   See id.
    
    Although the El Paso appeals court determined that the El Paso
    
    officials virtually represented the attorney general and the
    
    Motor Vehicle Division, it did not consider whether the El Paso
    
    injunction binds any entity other than the attorney general, the
    
    Motor Vehicle Division, and the named defendants in the trial
    
    court.   In order to answer that question, we must examine the
    
    relationship between the Harris County Attorney and his El Paso
    
    counterparts.
    
         The Supreme Court of Texas has stated that a person is “in
    
    active concert or participation” with a named party if he
    
    participated in the original proceeding and was a real party in
    
    interest when the decree was rendered.   See Ex parte Davis, 
    470 S.W.2d 647
    , 649 (Tex. 1971).   The Texas cases finding such a
    
    relationship, the Davis court asserted, “all contain some
    
    evidence of involvement with the named enjoined party or
    
    involvement in the original injunctive proceeding.”   Id.    In Ex
    
    parte Foster, 
    188 S.W.2d 382
    , 383-84 (Tex. 1945), for example,
    
    the court held that a non-party was bound by an injunction
    
    because he had a “vital interest” in the subject matter and the
    
    outcome of the injunction proceedings, knew about the injunction
    
    suit, employed an attorney to “go to the courthouse and ‘watch
    
    the lawsuit,’” was present at the injunction hearing, and had
    
    numerous conversations with the parties about the injunction.
    
    
                                    13
    The Foster court concluded that “by virtue of his knowledge of
    
    and interest in the subject matter of the litigation” and “his
    
    participation in the proceedings therein,” the non-party was
    
    bound by the injunction.     Id. at 384.
    
         In this case, however, the non-party was not involved with
    
    the litigation of the injunction at all.    The record clearly
    
    demonstrates that EPIADA, the plaintiff in the El Paso case,
    
    never served Harris County with citation.    There is no evidence
    
    that Harris County authorities had any knowledge of the El Paso
    
    lawsuit until after the state trial court rendered judgment and
    
    issued a permanent injunction.    Neither the County nor any of its
    
    officials participated in any way in the El Paso proceedings.       In
    
    State v. Cook United, Inc., 
    469 S.W.2d 709
     (Tex. 1971), the Texas
    
    Supreme Court found under very similar circumstances that an
    
    injunction should be limited to the parties of record.      In Cook
    
    United, the state of Texas itself, by and through the criminal
    
    district attorney of Tarrant County, filed four lawsuits seeking
    
    injunctive relief against Cook United under the Sunday closing
    
    law in effect at the time.     See id. at 710.   By way of cross-
    
    action, Cook United sought and obtained a temporary injunction
    
    enjoining the state, its attorney general, all district and
    
    county attorneys in the state, their agents and employees, and
    
    Tarrant and McLennan Counties from filing any more enforcement
    
    actions.   See id.   The Texas Supreme Court modified the
    
    injunction to apply only to the district attorneys of Tarrant and
    
    McLennan Counties.    See id. at 712.   The court first noted that
    
    
                                      14
    “no persons other than representatives or public officials of
    
    Tarrant and McLennan Counties were served with citation or notice
    
    of hearing” upon Cook United’s cross-action and that Texas Rule
    
    of Civil Procedure 681 provides that “[n]o temporary injunction
    
    shall be issued without notice to the adverse party.”   Id.    It
    
    then reasoned:
    
               In the absence of notice to or service of citation upon
          the Attorney General of the State of Texas, or county and
          district attorneys other than those of Tarrant and McLennan
          Counties the temporary injunction is hereby modified to
          enjoin only the county and district attorneys of Tarrant and
          McLennan Counties, and shall have no effect on the Attorney
          General of the State of Texas or the other district and
          county attorneys in this State.
               We do not agree with the Respondent’s contention that
          Article 1926-42, Vernon’s Texas Civil Statutes, makes the
          criminal District Attorney of Tarrant County the agent of
          the State of Texas or the Attorney General for the purposes
          of service of citation. Neither do we agree that the State
          of Texas and the Attorney General are properly enjoined by
          virtue of Rule 683, Texas Rules of Civil Procedure, in that
          they are not officers, agents, servants, employees or
          attorneys of the criminal District Attorney of Tarrant
          County. Moreover, not having served citation upon the State
          or Attorney General, Respondent cannot validly contend that
          the other county and district attorneys throughout the State
          would be bound by this temporary injunction under Rule 683,
          Texas Rules of Civil Procedure.
    
    Id.   Thus, even where the state is a plaintiff--in Cook United,
    
    the state brought suit by and through one of its district
    
    attorneys--its attorney general is not bound in the absence of
    
    service or pre-hearing notice.   This suggests that service, or at
    
    least notice, must be afforded an entity for that entity to be
    
    bound.   In the El Paso suit, Harris County received neither
    
    service nor notice and was not a plaintiff that could be charged
    
    
    
    
                                     15
    with knowledge of the action.    Thus, it appears, the El Paso
    
    injunction has no effect on Harris County.6
    
         We next consider the law of privity and virtual
    
    representation.   While it is well-established under Texas law
    
    that a non-party who is in privity with or virtually represented
    
    by a party to a lawsuit is bound by the judgment therein, see
    
    Benson v. Wanda Petroleum Co., 
    468 S.W.2d 361
    , 363-64 (Tex.
    
    1971), the definitions of each concept and the distinctions
    
    between them are not as clear.    Indeed, the Texas Supreme Court
    
    has acknowledged that “there is no generally prevailing
    
    definition of privity which can be automatically applied to all
    
    cases involving the doctrine of res judicata and the
    
    determination of who are privies requires careful examination
    
    into the circumstances of each case as it arises.”     Benson, 468
    
    S.W.2d at 363; see Getty Oil Co. v. Insurance Co. of N. Am., 845
    
         6
            At first glance, Cook United would seem to run counter to
    the principle enunciated by the United States Supreme Court in
    Sunshine Anthracite Coal Co. v. Adkins, 
    310 U.S. 381
    , 402-03
    (1940), that “[t]here is privity between officers of the same
    government so that a judgment in a suit between a party and a
    representative of the United States is res judicata in
    relitigation of the same issue between that party and another
    officer of the government.” But by its own terms, this statement
    applies only when the non-governmental party is the same in both
    suits, which is clearly not the case here. Even if “privity”
    between officers of the same government exists when the private
    parties are different, Sunshine Anthracite Coal involved a
    government officer (the Commissioner of Internal Revenue) who was
    essentially the agent of the coal company’s opponent in the
    earlier case (the governmental body that found the company liable
    for the tax at issue). Once again, that situation does not exist
    here. Finally, except insofar as the Due Process Clause of the
    federal constitution may be implicated, the question of whether
    the El Paso injunction binds Harris County is a matter of state
    law on which the Texas Supreme Court, not the United States
    Supreme Court, is the ultimate authority.
    
                                     
    16 S.W.2d 794
    , 800 (Tex. 1992).   Nevertheless, the courts have
    
    distilled some general principles.    First, “privity is not
    
    established by the mere fact that persons may be interested in
    
    the same question or in proving the same state of facts.”
    
    Benson, 468 S.W.2d at 363.   More specifically, the Texas Supreme
    
    Court has also stated that “privity connotes those who are in law
    
    so connected with a party to the judgment as to have such an
    
    identity of interest that the party to the judgment represented
    
    the same legal right,” id., a definition that includes those who
    
    control an action although not a party to it, those whose
    
    interests are represented by a party to the action, and
    
    successors in interest, see Amstadt v. United States Brass Corp.,
    
    
    919 S.W.2d 644
    , 653 (Tex. 1996).7    The definition of virtual
    
    representation is somewhat more straightforward: “The test in
    
    determining whether a person is covered by the doctrine of
    
    virtual representation is whether that person is bound by the
    
    judgment of the trial court by virtue of the fact that he or she
    
    was ‘represented’ by a party to the original suit.”    Subsequent
    
    Injury Fund, 961 S.W.2d at 677 (citing California & Hawaiian
    
    Sugar Co. v. Bunge Corp., 
    593 S.W.2d 739
    , 740 (Tex. Civ. App.--
    
    
         7
            Several judicial definitions of privity have focused on
    property rights; for example, the Subsequent Injury Fund court
    said that “[p]rivity is generally defined as a mutual or
    successive relationship to the same rights in property,” 919
    S.W.2d at 653 (emphasis added), and that “[a]ll persons are privy
    to a judgment whose succession to the rights of property therein
    adjudicated are derived through or under one or the other of the
    parties to the action and which accrued after the commencement of
    the action,” id. (emphasis added). These definitions are not
    relevant to this case.
    
                                    17
    Houston [1st Dist.] 1979, writ ref’d n.r.e.)); see Avila v. St.
    
    Luke’s Lutheran Hosp., 
    948 S.W.2d 841
    , 855 (Tex. App.--San
    
    Antonio 1997, writ denied).   Because Harris County neither
    
    controlled the El Paso action nor was a successor in interest to
    
    the El Paso officials, it is a privy only if it was represented
    
    by them.   Thus, our inquiry coalesces into a single issue:    Was
    
    Harris County represented by the El Paso County officials?
    
         In order for such representation to bind a non-party, it
    
    must amount to the non-party’s “participat[ing] through adequate
    
    representation.”   Avila, 948 S.W.2d at 848; see id. at 855; cf.
    
    TEX. R. CIV. P. 683 (providing that an injunction binds only those
    
    non-parties who are in “active concert or participation with” a
    
    party); G. & C. Merriam Co., 639 F.2d at 37 (“The central reason
    
    that one who is not a party to the action in which the injunction
    
    was issued cannot be bound by it is that he has not had his day
    
    in court with respect to the validity of the injunction.”).     The
    
    record demonstrates that Harris County did not participate
    
    through actual and adequate representation.   While the attorney
    
    general was given notice of the El Paso suit and expressly
    
    declined to appear on the grounds that “the real parties in
    
    interest were capable of adequately presenting the issues to the
    
    court,” Harris County neither knew of nor participated in the
    
    suit.   It is therefore not bound by the El Paso injunction.    Cf.
    
    Avila, 948 S.W.2d at 855 (“Cristina’s interests were neither
    
    represented nor protected in the former action. . . . [O]ne not
    
    before the court cannot be bound by any judgment entered.”).
    
    
                                    18
         CarMax’s final argument is that Harris County is in privity
    
    with or represented by the attorney general, see Attorney Gen.,
    
    966 S.W.2d at 785, and since the latter is bound by the
    
    injunction, Harris County is as well.   CarMax makes much of Cook
    
    United’s statement that “not having served citation upon the
    
    State or Attorney General, Respondent cannot validly contend that
    
    the other county and district attorneys throughout the State
    
    would be bound by this temporary injunction under Rule 683, Texas
    
    Rules of Civil Procedure,” 469 S.W.2d at 712.   According to
    
    CarMax, this indicates that if the attorney general is served,
    
    all district and county attorneys throughout the State of Texas
    
    are bound by a subsequent injunction.   In this case, CarMax
    
    claims, the attorney general was served pursuant to Texas Civil
    
    Practice and Remedies Code § 37.006(b).   We do not think that
    
    compliance with this statute constitutes “service” within the
    
    meaning of Cook United.   That opinion draws a distinction between
    
    “notice to” and “service of citation upon” a potential party.
    
    Id. (“In the absence of notice to or service of citation upon the
    
    Attorney General of the State of Texas . . . the temporary
    
    injunction . . . shall have no effect on the Attorney
    
    General . . . .”) (emphasis added).   The El Paso district court’s
    
    findings of fact indicate that while “[s]ervice of citation was
    
    made on the District Attorney for El Paso County, Texas; the
    
    County Attorney for El Paso County, Texas; and, the City Attorney
    
    for the City of El Paso, Texas[,] . . . . [N]otice of the
    
    petition was delivered to the Honorable Dan Morales, Attorney
    
    
                                    19
    General of the state of Texas.”    El Paso Indep. Auto. Dealers
    
    Ass’n, No. 97-3425, slip op. at 3-4 (findings of fact and
    
    conclusions of law); cf. Lone Starr Multi Theatres, Inc. v.
    
    State, 
    922 S.W.2d 295
    , 298 (Tex. App.--Austin 1996, no writ)
    
    (finding that Texas Civil Practice and Remedies Code § 37.006(b)
    
    requires that the attorney general be given notice of a suit to
    
    declare a statute unconstitutional, not that he actually be sued
    
    as a party in such an action).    Thus, while the attorney general
    
    may have received notice in this case, he was not served, and
    
    CarMax therefore “cannot validly contend that the other county
    
    and district attorneys throughout the state would be
    
    bound . . . .”   Cook United, 469 S.W.2d at 712.
    
         But even assuming that the attorney general was, in fact,
    
    “served,” as that term is used in Cook United, the sentence to
    
    which CarMax points provides only weak support for its argument.
    
    While it may imply that a plaintiff must “serve” the attorney
    
    general before he can even “validly contend” that all district
    
    and county attorneys are bound by the injunction, it does not
    
    take the further step of holding that such “service” upon the
    
    attorney general, without more, makes a judgment binding on all
    
    district and county attorneys.    “Service,” in the sense of mere
    
    delivery of a copy of the proceeding to the attorney general,
    
    does not necessarily mean that non-parties such as Harris County
    
    were actually and adequately represented so that they had a day
    
    in court with respect to the validity of the injunction.    Indeed,
    
    while it may be true that a local law enforcement official is
    
    
                                      20
    bound when his interests are represented by the state attorney
    
    general, see American Libraries Ass’n v. Pataki, 
    969 F. Supp. 160
    , 163 (S.D.N.Y. 1997) (holding that an injunction against the
    
    governor and attorney general, where they actively defended the
    
    case, also would bind local district attorneys); American
    
    Booksellers Ass’n v. Webb, 
    590 F. Supp. 677
    , 693 (N.D. Ga. 1984)
    
    (concluding that subordinate law enforcement officials were bound
    
    by an injunction against the state attorney general, who, while
    
    not named as a party, was served with a copy of the proceeding
    
    and entered an appearance to argue in support of the challenged
    
    statute’s constitutionality), that was not the case here.      Unlike
    
    his counterparts in American Libraries Association and American
    
    Booksellers Association, the Texas attorney general, while served
    
    with a copy of the El Paso proceeding, chose not to appear to
    
    defend the constitutionality of the Blue Law.    Nor did the
    
    attorney general necessarily speak for Harris County in allowing
    
    the El Paso officials to prosecute the El Paso litigation.     We
    
    have previously held that the attorney general does not represent
    
    all district and county attorneys in the state when he makes
    
    decisions regarding the conduct of litigation.    See Baker v.
    
    Wade, 
    769 F.2d 289
    , 291 (5th Cir. 1985) (allowing a Texas
    
    district attorney to appeal even after the attorney general
    
    declined to do so); see also League of United Latin American
    
    Citizens Council No. 4434 v. Clements, 
    999 F.2d 831
    , 841 n.7 (5th
    
    Cir. 1993) (en banc) (explaining that Baker means that in a suit
    
    challenging the constitutionality of a state statute, the
    
    
                                   21
    attorney general does not possess exclusive authority to choose
    
    whether the state’s interests will be asserted on appeal and that
    
    another state official charged with the duty of enforcing a
    
    statute held unconstitutional could appeal the judgment even if
    
    the attorney general chose not to do so).8
    
         We therefore conclude that the El Paso injunction does not
    
    bind Harris County and its officials because they were not
    
    parties to the El Paso lawsuit or officers, agents, servants,
    
    employees, or attorneys of, or in active concert or participation
    
    with, the parties to that action.    Nor are Harris County and its
    
    officials in privity with or virtually represented by the El Paso
    
    district, county, and city attorneys, or by the attorney general
    
    of Texas, such that they are bound by the El Paso judgment.
    
    Because the County is subject to no state court injunction, the
    
    district court’s preliminary injunction does not implicate the
    
    Anti-Injunction Act.
    
    B.   Did the district court erroneously proceed notwithstanding
         prior, duplicative litigation in another district court?
    
         CarMax also contends that the court below should not have
    
    exercised jurisdiction over Harris County’s lawsuit because
    
    prior, duplicative litigation is pending in the Northern District
    
         8
            In Baker and League of United Latin American Citizens, of
    course, the officials opposing the attorney general were bound by
    the trial court judgment. This does not mean, however, that such
    officials are automatically bound whenever the attorney general
    is bound. Rather, the district attorney in Baker was a member of
    a certified defendant class, and the Chief Justice of the Texas
    Supreme Court in League of United Latin American Citizens was a
    named defendant. We cite these cases only for the proposition
    that the attorney general does not speak for all officials
    authorized to enforce a state statute.
    
                                    22
    of Texas.   In support of its argument, CarMax points to West Gulf
    
    Maritime Association v. ILA Deep Sea Local 24, 
    751 F.2d 721
     (5th
    
    Cir. 1985), in which we said:
    
              The federal courts long have recognized that the
         principle of comity requires federal district courts--courts
         of coordinate jurisdiction and equal rank--to exercise care
         to avoid interference with each other’s affairs. “As
         between federal district courts, . . . the general principle
         is to avoid duplicative litigation.” The concern manifestly
         is to avoid the waste of duplication, to avoid rulings which
         may trench upon the authority of sister courts, and to avoid
         piecemeal resolution of issues that call for a uniform
         result. To avoid these ills, a district court may dismiss
         an action where the issues presented can be resolved in an
         earlier-filed action pending in another district court. In
         particular, “[a] court may . . . in its discretion dismiss a
         declaratory judgment or injunctive suit if the same issue is
         pending in litigation elsewhere.”
    
    Id. at 728-29 (citations and footnote omitted).   Complete
    
    identity of neither the parties nor of the lawsuit itself is
    
    required for dismissal or transfer of a case filed subsequently
    
    to an action with substantial overlap of substantive issues.     See
    
    Save Power Ltd. v. Syntek Fin. Corp., 
    121 F.3d 947
    , 950-51 (5th
    
    Cir. 1997).   But while a district court may dismiss an injunction
    
    suit if duplicative litigation is pending in another
    
    jurisdiction, it is not required to do so.   Indeed, we made clear
    
    in West Gulf Maritime Association, as the Supreme Court did in
    
    Abbott Laboratories v. Gardner, 
    387 U.S. 136
    , 155 (1967),
    
    abrogated on other grounds, Califano v. Sanders, 
    430 U.S. 99
    
    (1977), that such dismissal is committed to the district court’s
    
    discretion.
    
         We do not think that the district court abused that
    
    discretion in exercising jurisdiction over this case.   The Blue
    
    
                                    23
    Law requires that a suit to enforce it must be brought in the
    
    county in which the violation is alleged.     See TEX. TRANSP. CODE
    
    § 728.004(a).    The plaintiff here therefore properly sued in
    
    Harris County.    While CarMax filed a motion to transfer venue to
    
    the Northern District of Texas, 28 U.S.C. § 1404(a) provides that
    
    “[f]or the convenience of parties and witnesses, in the interest
    
    of justice, a district court may transfer any civil action to any
    
    other district or division where it might have been brought.”          It
    
    is not clear that this action could have been brought in the
    
    United States District Court for the Northern District of Texas,
    
    as the Blue Law authorizes suit only “in the county in which a
    
    violation is alleged,” TEX. TRANSP. CODE § 728.004(a), and Harris
    
    County is not in the Northern District of Texas.     Moreover, we
    
    find it doubtful that transfer would have been “[f]or the
    
    convenience of parties and witnesses.”    28 U.S.C. § 1404(a).        The
    
    plaintiff and the three CarMax stores whose activity was at issue
    
    are all located in Harris County.     The County also alleged in its
    
    response to the motion to transfer, and CarMax did not contest,
    
    that the county attorney and the majority of witnesses reside in
    
    Harris County.    In light of the fact that this case probably
    
    could not have been transferred to any other federal court and
    
    its strong ties to Harris County, we conclude that the district
    
    court did not abuse its discretion in exercising jurisdiction
    
    over it.
    
    C.   Did Harris County establish a substantial likelihood of
         success on the merits?
    
    
    
                                     24
         As we observed above, a preliminary injunction is properly
    
    granted only if the movant establishes a substantial likelihood
    
    of success on the merits.   See Cherokee Pump, 38 F.3d at 249.
    
    CarMax contends that the Blue Law is “no longer rationally
    
    related to the purpose behind [its] enactment,” contravenes
    
    article III, § 56 of the Texas Constitution, is
    
    unconstitutionally vague, and violates the Commerce Clause of the
    
    United States Constitution.9   We consider each of these claims in
    
    turn.
    
         1.   Rational Relationship
    
         CarMax first contends that the Blue Law is not rationally
    
    related to the purposes behind its enactment.   CarMax maintains
    
    that while the objective of earlier versions of the statute was
    
    to achieve a one-day surcease from commerce, and the
    
    legislature’s current goal is to maximize consumer protection and
    
         9
            Unlike many retailers who have challenged similar
    statutes in the past, CarMax does not contend that the Blue Law
    violates the First Amendment’s guarantee of freedom of religion.
    See U.S. CONST. amend. I (“Congress shall make no law respecting
    an establishment of religion, or prohibiting the free exercise
    thereof . . . .”). The courts generally have rejected these
    First Amendment attacks. See, e.g., McGowan v. Maryland, 
    366 U.S. 420
    , 429-53 (1961) (finding that the Maryland Blue Law did
    not constitute an establishment of religion); Two Guys from
    Harrison-Allentown, Inc. v. McGinley, 
    366 U.S. 582
    , 592-98 (1961)
    (holding that the Pennsylvania Sunday closing law did not violate
    the Establishment Clause); Braunfeld v. Brown, 
    366 U.S. 599
    , 601-
    10 (1961) (plurality opinion) (concluding that Pennsylvania
    Sunday closing law did not violate Orthodox Jewish merchants’
    right to free exercise of their religion); Home Depot, Inc. v.
    Guste, 
    773 F.2d 616
    , 619 n.3 (5th Cir. 1985) (stating agreement
    with district court that Louisiana Sunday closing law did not
    violate First Amendment); Kirt v. Humphrey, 
    1997 WL 561249
    , at
    *3-*5 (Minn. Ct. App. Sept. 9, 1997) (unpublished opinion)
    (concluding that Minnesota law banning the sale of motor vehicles
    on Sunday did not violate the First Amendment).
    
                                      25
    the health, safety, and welfare of the people of Texas, modern
    
    Texans do not now recognize either Saturday or Sunday as a day of
    
    cessation from commercial activities, and the Blue Law in no way
    
    benefits them.   The district court rejected CarMax’s
    
    constitutional challenge, concluding that “[i]n view of the long
    
    and consistent affirmance of the constitutionality of such
    
    statutes, and in the absence of any distinguishing arguments with
    
    respect to the instant statute, it is evident that the County
    
    Attorney of Harris County has a substantial likelihood of
    
    prevailing on the merits.”     In addition, it stated, the evidence
    
    presented at the preliminary injunction hearing contained “ample
    
    public policy reasons for retaining the Saturday or Sunday
    
    closing requirement as to automobile dealers.”
    
         Laws forbidding certain forms of commerce on given days of
    
    the week have a long history in this country.    In McGowan v.
    
    Maryland, 
    366 U.S. 420
    , 422 (1961), the Supreme Court considered
    
    a constitutional challenge to a state statute proscribing all
    
    labor, business, and other commercial activities, with certain
    
    limited exceptions, on Sunday.    The appellants argued that the
    
    Maryland law violated the Fourteenth Amendment’s Equal Protection
    
    Clause because, among other things, the classifications regarding
    
    what commodities could or could not be sold on Sunday were
    
    “without rational and substantial relation to the object of the
    
    legislation.”    Id. at 425.   The Court first stated the standard
    
    for evaluating such an equal protection challenge:
    
              The standards under which this proposition is to be
         evaluated have been set forth many times by this Court.
    
                                         26
         Although no precise formula has been developed, the Court
         has held that the Fourteenth Amendment permits the States a
         wide scope of discretion in enacting laws which affect some
         groups of citizens differently than others. The
         constitutional safeguard is offended only if the
         classification rests on grounds wholly irrelevant to the
         achievement of the State’s objective. State legislatures
         are presumed to have acted within their constitutional power
         despite the fact that, in practice, their laws result in
         some inequality. A statutory discrimination will not be set
         aside if any state of facts reasonably may be conceived to
         justify it.
    
    Id. at 426.    The Court then found that there was a reasonable
    
    basis for the specific exemptions from the general ban on Sunday
    
    commerce at issue in the case.    It noted that the purpose of the
    
    law was to provide a uniform day of rest for all citizens, see
    
    id. at 445, and concluded that such exceptions as soft drinks,
    
    fruit, ice cream, gasoline, alcoholic beverages, and games of
    
    chance could enhance “the recreational atmosphere of the day,”
    
    while medication and newspapers “should always be available to
    
    the public.”    Id.
    
         Similarly, in Two Guys from Harrison-Allentown, Inc. v.
    
    McGinley, 
    366 U.S. 582
    , 589-92 (1961), a case decided the same
    
    day as McGowan, the Court faced an equal protection challenge to
    
    a Pennsylvania statute that imposed a heavier penalty for the
    
    Sunday sale of certain commodities than for others.    The court
    
    below had made a factual finding that the goods subject to the
    
    higher fine were the kinds of merchandise sold in large suburban
    
    department stores for which a small fine was not a deterrent.
    
    See id. at 590.    The Supreme Court held that the state
    
    legislature reasonably could have concluded “that these
    
    businesses were particularly disrupting the intended atmosphere
    
                                     27
    of the day because of the great volume of motor traffic
    
    attracted, the danger of their competitors also opening on
    
    Sunday, and their large number of employees.”   Id. at 591.
    
         “Evils in the same field may be of different dimensions and
         proportions, requiring different remedies. . . . Or the
         reform may take one step at a time, addressing itself to the
         phase of the problem which seems most acute to the
         legislative mind. . . . The legislature may select one phase
         of one field and apply a remedy there, neglecting the
         others.”
    
    Id. at 591-92 (quoting Williamson v. Lee Optical, 
    348 U.S. 483
    ,
    
    489 (1955)); see Braunfeld v. Brown, 
    366 U.S. 599
    , 601 (1961)
    
    (plurality opinion) (rejecting an equal protection challenge to
    
    the Pennsylvania statute considered in Two Guys); Gallagher v.
    
    Crown Kosher Super Market, 
    366 U.S. 617
    , 622-23 (1961) (plurality
    
    opinion) (finding that the exceptions to a Massachusetts law
    
    prohibiting Sunday commerce were “reasonably explainable on their
    
    face” as enhancing “the day’s special character” or, at least, as
    
    not detracting from it).
    
         We now turn to the Texas courts.   In State v. Spartan’s
    
    Industries, Inc., 
    447 S.W.2d 407
     (Tex. 1969), the Supreme Court
    
    of Texas considered an equal protection challenge to an earlier
    
    version of the Blue Law:   Texas Penal Code article 286a, which
    
    authorized injunctions against sales of certain items on
    
    consecutive days of Saturday and Sunday, and other code
    
    provisions levying fines for opening a place of business on
    
    Sunday.   The court concluded that the statute was intended to
    
    achieve a “one day a week surcease from commerce” and that “[t]he
    
    Legislature was entitled to expect that Article 286a would yield
    
    
                                    28
    Sunday operations only by Sabbatarians and perhaps an occasional
    
    small storekeeper,” id. at 412, because the typical merchant
    
    given a choice between opening on Saturday or Sunday was unlikely
    
    to choose to be open on Sunday, see id. at 411.     The court also
    
    rejected the storekeepers’ claim that they were denied equal
    
    protection because the statute authorized an injunction only
    
    against those who were in the business of selling certain
    
    enumerated articles.   See id. at 412.    The court stated that Two
    
    Guys involved nearly exactly the same commodities as article
    
    286a, and it upheld the Texas law on the grounds that sellers of
    
    the named items were “particularly disrupting.”     Id.
    
         In 1973, the Texas legislature repealed the Penal Code
    
    provisions (articles 282 through 287) broadly prohibiting labor
    
    and sales on Sunday, leaving only the commodities listed in the
    
    former article 286a, recodified as article 9001 of the Texas
    
    Civil Statutes, as those that could not legally be sold on
    
    consecutive Saturdays and Sundays.     See Gibson Prods. Co. v.
    
    State, 
    545 S.W.2d 128
    , 129 (Tex. 1976).    In Gibson, a merchant
    
    argued that there was no rational justification for article
    
    9001’s proscriptions on goods that could be sold.    Whereas
    
    article 286a had been part of a larger legislative scheme
    
    requiring almost all stores to close one day of the weekend, with
    
    enhanced penalties for certain types of stores, article 9001 now
    
    restricted sales of only certain kinds of goods.     See id.
    
    Nevertheless, the court upheld the statute:
    
              In State v. Spartan’s Industries, Inc., supra, we said
         that we understood the principal plan of this statute to be
    
                                         29
         the provision of effective sanctions to close most
         mercantile establishments on Sunday--Saturday being the
         better day for sales than Sunday. Allowing latitude for
         Sabbatarians and for some who prefer to tend only the Sunday
         trade, the Legislature thereby maintains the prevailing
         custom of people doing their serious shopping for clothing,
         furniture, automobiles, household and office appliances, and
         hardware on weekdays. When the Legislature retained the
         statute in 1973, it apparently decided to continue to serve
         that purpose. We regard the matter as a legislative
         question and reaffirm the constitutionality of the present
         statute.
    
    Id. at 129-30.   Texas courts subsequently have upheld article
    
    9001 against a variety of attacks.     See Gibson Distrib. Co. v.
    
    Downtown Dev. Ass’n, 
    572 S.W.2d 334
    , 335 (Tex. 1978) (rejecting
    
    equal protection, due process, and federal preemption
    
    challenges); State v. Revco, D.S., Inc., 
    675 S.W.2d 219
    , 221
    
    (Tex. App.--Dallas 1984, no writ) (holding that challengers
    
    failed to establish in a summary judgment proceeding that there
    
    was no reasonable relation between article 9001 and the health,
    
    recreation, and welfare of the people of Texas); cf. Michelle
    
    Corp. v. El Paso Retailers Ass’n, 
    626 S.W.2d 615
    , 616 (Tex. App.-
    
    -El Paso 1981, writ ref’d n.r.e.) (holding that a plaintiff
    
    seeking a preliminary injunction against violations of article
    
    9001 completes its case upon showing that the defendant sold the
    
    enumerated items on both Saturday and Sunday).
    
         But the statutes involved in these cases differ from the
    
    current Texas Blue Law in one crucial respect:    Whereas the older
    
    laws proscribed the sale on consecutive days of Saturday and
    
    Sunday of a relatively long list of items, the statute at issue
    
    here applies only to motor vehicles.    Every other article may be
    
    sold seven days a week.   Our task is to determine whether such a
    
                                    30
    restriction bears a rational relationship to a legitimate state
    
    end.    We have emphasized that in suits involving a challenge to a
    
    law’s rational basis, the burden is not upon the state to
    
    establish the rationality of its statute, but is upon the
    
    challenger to show that the restriction is wholly arbitrary.     See
    
    Home Depot, Inc. v. Guste, 
    773 F.2d 616
    , 621 (5th Cir. 1985).
    
           Although the original justification for the Texas Blue Laws
    
    was to achieve a one-day surcease from commerce, see Spartan’s
    
    Indus., 447 S.W.2d at 411, the legislature found when enacting
    
    the current version of the statute that
    
           regulation of the purchase, sale, and exchange of motor
           vehicles on certain days, as part of the state’s motor
           vehicle regulatory scheme, is a valid exercise of the
           state’s police power in order to provide maximum protection
           to consumers of motor vehicles and that this regulation is
           necessary for the preservation of the public health, safety,
           and welfare.
    
    TEX. REV. CIV. STAT. ANN. art. 6686-1 note (Vernon 1985); see TEX.
    
    REV. CIV. STAT. ANN. art. 6686-1, § 5 (Vernon 1985) (“The purpose
    
    of this Act being to promote the health, recreation, and welfare
    
    of the people of this state . . . .”).10
    
           We think that Harris County has a substantial likelihood of
    
    prevailing on the merits of this issue.    At the preliminary
    
    
           10
            The current Blue Law, which applies only to motor
    vehicles, was enacted in 1985. See Act of May 17, 1985, 69th
    Leg., R.S., ch. 220, § 3, 1985 Tex. Sess. Law Serv. 1767, 1768.
    In 1995, the legislature repealed this version, see Act of Apr.
    21, 1995, 74th Leg., R.S., ch. 165, § 24(a), 1995 Tex. Sess. Law
    Serv. 1025, 1871, and recodified it, with non-substantive
    revisions, to appear at its present location in the Texas
    Transportation Code, see id. at 1830. The current codification
    does not contain a statement of legislative purpose. See TEX.
    TRANSP. CODE §§ 728.001-.004.
    
                                     31
    injunction hearing before the district court, the County elicited
    
    testimony that because the demand for motor vehicles is
    
    inelastic, allowing car dealership employees to work both days of
    
    the weekend would impose hardship on them without any increase in
    
    the number of cars purchased.   The additional cost of paying the
    
    existing employees overtime (or hiring additional staff) then
    
    would be passed on to the consumer in the form of higher car
    
    prices.   The County’s witnesses also stated that a seven-day work
    
    week would create burdens on state licensing, titling, and
    
    dealership inspection personnel and that Sunday sales were
    
    impractical because it is difficult to obtain insurance,
    
    licensing information, and employment or residency verification
    
    on that day.   Finally, several witnesses testified that consumers
    
    supported the Blue Law because it allowed them to browse car
    
    dealership lots one day a week without encountering salespeople.
    
    We think that this evidence suffices to show a substantial
    
    likelihood that there is a rational relationship between the Blue
    
    Law and the purposes for which it was enacted.   Cf. Lakeside
    
    Imports, Inc. v. State, 
    639 So. 2d 253
    , 256-57 (La. 1994)
    
    (concluding that a Louisiana law barring the Sunday sale of cars
    
    and trucks was rationally related to the legitimate state
    
    objective of protecting small rural dealerships from unfair
    
    competition by large metropolitan dealerships, consumers from
    
    higher prices for automobiles brought on by higher overhead from
    
    Sunday sales, and the welfare of commissioned car salesmen).
    
    
    
    
                                    32
         We caution the district court, however, that while Harris
    
    County has shown a substantial likelihood that there is a
    
    rational relationship between the Blue Law and the purposes for
    
    which it was enacted, CarMax has raised a number of
    
    countervailing considerations that must be weighed carefully
    
    before a permanent injunction is issued.   It is true, of course,
    
    that rational basis review does not require that a legislature
    
    actually articulate at any time the purpose or rationale
    
    supporting its classification, and the reviewing court need only
    
    find that a legitimate goal “conceivably” or “reasonably” could
    
    have been the purpose and policy of the relevant decisionmaker.
    
    Nordlinger v. Hahn, 
    505 U.S. 1
    , 15 (1992).   But the Supreme Court
    
    also has made clear (albeit in contexts somewhat different from
    
    ours) that the rational basis test “is not a toothless one.”
    
    Mathews v. Lucas, 
    427 U.S. 495
    , 510 (1976) (examining the
    
    constitutionality under the Fifth Amendment’s Due Process Clause
    
    of a federal statute regulating eligibility of illegitimate
    
    children for insurance benefits); see Cleburne v. Cleburne Living
    
    Ctr., Inc., 
    473 U.S. 432
    , 447-50 (1985) (holding that, under
    
    rational basis review, an ordinance requiring a special use
    
    permit for homes for the mentally retarded violated equal
    
    protection).   CarMax argued vigorously that the state legislature
    
    could not rationally have thought that the Blue Law benefits
    
    consumers or protects the health, safety, and welfare of the
    
    people of Texas.   It contended, for example, that the cost per
    
    car sold is lower with a seven-day week than with a six-day week
    
    
                                    33
    and that the principal expense of opening a seventh day is the
    
    variable cost of the salespeople’s pay, which is absorbed by the
    
    cars they sell.    CarMax also pointed out that it employs several
    
    shifts of sales consultants and that each sales consultant
    
    typically works only forty to forty-five hours per week.
    
    Finally, CarMax asserted, it had experienced no problems
    
    obtaining insurance and financing on Sundays, and consumers
    
    appreciate being able to shop on both weekend days.     While we
    
    think that the County showed a sufficient likelihood of success
    
    on the merits to survive a challenge at the preliminary
    
    injunction stage, we caution that there are a number of
    
    considerations that must be carefully examined when this case
    
    comes up on an application for a permanent injunction.     With that
    
    caveat, we proceed to CarMax’s other arguments.
    
         2.   Special Law
    
         Article III, § 56 of the Texas Constitution provides that
    
    “[t]he Legislature shall not, except as otherwise provided in
    
    this Constitution, pass any local or specialized law” for certain
    
    named purposes.    In addition, “in all other cases where a general
    
    law can be made applicable, no local or special law shall be
    
    enacted . . . .”   TEX. CONST. art. III, § 56.   “The primary and
    
    ultimate test of whether the law is general or special is whether
    
    there is a reasonable basis for the classification it makes and
    
    whether the law operates equally on all within the class.”
    
    Trinity River Auth. v. URS Consultants, Inc.--Texas, 
    889 S.W.2d 259
    , 265 (Tex. 1994); see Edgewood Indep. Sch. Dist. v. Meno, 917
    
    
                                     
    34 S.W.2d 717
    , 745 (Tex. 1995).    We concluded above that Harris
    
    County has a substantial likelihood of successfully showing that
    
    there is a reasonable basis for the Blue Law’s classification,
    
    and CarMax does not contend that the statute does not apply
    
    equally to all motor vehicle dealers.    Therefore, we decline to
    
    disturb the district court’s preliminary finding that the Blue
    
    Law is not special legislation in violation of the Texas
    
    Constitution.
    
         3.   Vagueness
    
         CarMax also argues that the Blue Law is impermissibly vague
    
    because the phrase “offer for sale” fails to provide persons of
    
    ordinary intelligence an opportunity to know what is prohibited.
    
    According to CarMax, it is unclear whether “offer for sale”
    
    includes allowing consumers to review its inventory via the
    
    Internet, a fact the district court itself acknowledged when it
    
    limited its injunction to prohibit selling or offering to sell
    
    motor vehicles “on the premises” of CarMax’s Harris County
    
    locations.11    At the preliminary injunction hearing, however,
    
    
         11
            Although the current Blue Law’s predecessors have been
    attacked on vagueness grounds, these challenges have focused on
    the list of items subject to the statute and not on the phrase
    “offer for sale.” See Home Depot, 773 F.2d at 627-29; Spartan’s
    Indus., 447 S.W.2d at 413; Retail Merchants Ass’n v. Handy Dan
    Hardware, Inc., 
    696 S.W.2d 44
    , 51-52 (Tex. App.--Houston [1st
    Dist.] 1985, no writ); Michelle Corp. v. El Paso Retailers Ass’n,
    
    675 S.W.2d 610
    , 611-12 (Tex. App.--El Paso 1984, no writ); Hill
    v. Gibson Discount Ctr., 
    437 S.W.2d 289
    , 292 (Tex. Civ. App.--
    Amarillo 1968, writ ref’d n.r.e.); Spartan Indus., Inc. v. State,
    
    379 S.W.2d 931
    , 932 (Tex. Civ. App.--Eastland 1964, no writ).
    This precedent does not assist us in evaluating CarMax’s
    argument.
    
    
                                      35
    Harris County stipulated that it was not seeking to enjoin
    
    CarMax’s Internet operations, and in its brief to this court, the
    
    County concedes that “Chapter 728 has absolutely no effect on
    
    Carmax’ [sic] use of the Internet.”
    
         CarMax lacks standing to press this challenge.   Its argument
    
    that the County cannot enforce the Blue Law because it is not
    
    clear whether “offer for sale” applies to Internet activity
    
    amounts to a contention that the Blue Law is unconstitutionally
    
    vague on its face.   A facial challenge for vagueness is
    
    appropriate only on an allegation that the law is vague “not in
    
    the sense that it requires a person to conform his conduct to an
    
    imprecise but comprehensible normative standard, but rather in
    
    the sense that no standard of conduct is specified at all.”
    
    Ferguson v. Estelle, 
    718 F.2d 730
    , 735 (5th Cir. 1983) (citing
    
    Smith v. Goguen, 
    415 U.S. 566
    , 578 (1974)).   CarMax does not
    
    claim that the Blue Law is inherently standardless, enforceable
    
    only on the exercise of the state’s unlimited and arbitrary
    
    discretion; instead, it complains that the statute is imprecise
    
    in that it does not make clear whether it applies to Internet
    
    activity.   But a litigant will not be permitted to challenge a
    
    statute for imprecision if his own conduct is clearly within the
    
    core of proscribed conduct, see id., and in fact, as applied
    
    here, the Blue Law does not implicate the Internet at all, and
    
    CarMax does not claim that it fails to give adequate notice as to
    
    whether it reaches on-the-premises motor vehicle sales, cf. Home
    
    Depot, 773 F.2d at 629 (finding that a Louisiana law barring the
    
    
                                    36
    sale of certain items on Sunday was not facially unconstitutional
    
    because “there is patently a substantial core of products to
    
    which [the statute] is not impermissibly vague”).    CarMax has no
    
    standing to challenge the Blue Law as it might be applied to
    
    others.   See Ferguson, 718 F.2d at 735; see also Basiardanes v.
    
    City of Galveston, 
    682 F.2d 1203
    , 1210 (5th Cir. 1982)
    
    (“Ordinarily, a litigant to whom a statute clearly applies lacks
    
    standing to argue that the statute is vague as to others.”).12
    
         In summary, Harris County has shown that it has a
    
    substantial likelihood of success on the merits.    We therefore
    
    decline to reverse the district court’s grant of a preliminary
    
    injunction on this ground.
    
    D.   Did the district court’s grant of a preliminary injunction
         violate Federal Rule of Civil Procedure 65(a)(1)?
    
         Finally, CarMax contends that the district court’s grant of
    
    a preliminary injunction violated Federal Rule of Civil Procedure
    
    65(a)(1) because the court construed Harris County’s motion for a
    
         12
            CarMax also contends that the Blue Law
    unconstitutionally interferes with interstate commerce in
    violation of the Commerce Clause. CarMax argues that the state
    can enforce the Blue Law only by barring vendors from offering
    used cars for sale on their Internet sites on consecutive
    Saturdays and Sundays regardless of the regulated business’s
    geographical location, and because of the national scope and
    interconnectedness of the Internet, such a restriction is
    essentially an unconstitutional blanket prohibition on an entire
    category of Internet commerce. As we mentioned above, however,
    Harris County explicitly stated at the preliminary injunction
    hearing that it was not seeking to restrain CarMax’s Internet
    activity, and the district court’s injunction applies only to
    sales or offers to sell “on the premises” of CarMax’s three
    Harris County stores. We therefore leave the question of whether
    the Blue Law violates the Commerce Clause by inhibiting Internet
    activity for another day.
    
    
                                    37
    temporary restraining order as a motion for a preliminary
    
    injunction, gave CarMax only three business days’ notice that it
    
    should be prepared to defend against a motion for a preliminary
    
    injunction, and allowed only two hours for the hearing.
    
         Rule 65(a)(1) provides that “[n]o preliminary injunction
    
    shall be issued without notice to the adverse party.”   The Rule’s
    
    notice requirement necessarily requires that the party opposing
    
    the preliminary injunction has the opportunity to be heard and to
    
    present evidence.   See Granny Goose Foods, Inc. v. Brotherhood of
    
    Teamsters & Auto Truck Drivers, Local No. 70, 
    415 U.S. 423
    , 434
    
    n.7 (1974) (“The notice required by Rule 65(a) before a
    
    preliminary injunction can issue implies a hearing in which the
    
    [opposing party] is given a fair opportunity to oppose the
    
    application and to prepare for such opposition.”); Commerce Park
    
    at DFW Freeport v. Mardian Constr. Co., 
    729 F.2d 334
    , 341 (5th
    
    Cir. 1984) (explaining that Rule 65(a) mandates that where
    
    factual disputes are presented, “the parties must be given a fair
    
    opportunity and a meaningful hearing to present their differing
    
    versions of those facts before a preliminary injunction may be
    
    granted”).   Furthermore, notice under Rule 65(a)(1) should comply
    
    with Rule 6(d), which requires five days’ notice before a hearing
    
    on a motion.   See Marshall Durbin Farms, Inc. v. National Farmers
    
    Org., 
    446 F.2d 353
    , 358 (5th Cir. 1971) (citing FED. R. CIV. P.
    
    6(d)).   Because “[c]ompliance with Rule 65(a)(1) is mandatory,” a
    
    preliminary injunction granted without adequate notice and a fair
    
    opportunity to oppose it should be vacated and remanded to the
    
    
                                    38
    district court.   Parker v. Ryan, 
    960 F.2d 543
    , 544 (5th Cir.
    
    1992).
    
         CarMax, however, failed to preserve error below.    Typically,
    
    we will not consider on appeal matters not presented to the trial
    
    court.   See Quenzer v. United States (In re Quenzer), 
    19 F.3d 163
    , 165 (5th Cir. 1993).   Rather, the litigant must raise his
    
    argument to such a degree that the district court may rule on it.
    
    See FDIC v. Mijalis, 
    15 F.3d 1314
    , 1327 (5th Cir. 1994).    Before
    
    the district court, CarMax never requested a postponement of the
    
    preliminary injunction hearing.    Instead, it filed a detailed
    
    Brief in Opposition to Request for Injunctive Relief accompanied
    
    by six exhibits, including transcripts of a temporary restraining
    
    order hearing in the Northern District of Texas and the pre-
    
    removal state court proceedings in the instant action.    During
    
    the preliminary injunction hearing itself, CarMax presented the
    
    testimony of three witnesses, including its president and the
    
    manager of Internet activity for its parent company, and
    
    vigorously cross-examined Harris County’s four witnesses.
    
         Moreover, even if CarMax had not waived its Rule 65(a)(1)
    
    argument, the record suggests that CarMax had ample notice and
    
    opportunity to oppose Harris County’s motion for a preliminary
    
    injunction.   CarMax first received notice that Harris County was
    
    seeking a temporary restraining order and preliminary and
    
    permanent injunctions on July 1, 1998, when the County filed its
    
    petition in state court.    Furthermore, the County states in its
    
    brief, although no evidence to prove or disprove this contention
    
    
                                      39
    appears in the record, that the federal district court informed
    
    CarMax at a conference on July 13, 1998, that the preliminary
    
    injunction hearing would take place on July 27, 1998.   Finally,
    
    as we observed above, CarMax had a full opportunity during the
    
    hearing itself to defend its position.
    
          Under all these circumstances, we cannot say that CarMax
    
    was deprived of notice and an opportunity to oppose the
    
    preliminary injunction in violation of Federal Rule of Civil
    
    Procedure 65(a)(1).
    
                             IV.   CONCLUSION
    
         For the foregoing reasons, we AFFIRM the preliminary
    
    injunction entered by the district court.
    
    
    
    
                                    40