the State of Texas, Ex. Rel. Todd A. Durden, in His Official Capacity as County Attorney of Kinney County, Texas, Relator v. Rick Alvarado, in His Official Capacity as District and County Clerk of Kinney County, Texas, And Kinney County, Texas, by and Through Its Governing Body the Kinney County Commissioners Court, Being James T. 'Tully' Shahan, in His Official Capacity as County Judge Mark Frerich, in His Official Capacity as County Commissioner Joe Montalvo, in His Official Capacity as County Commissioner Dennis Dodson, in His Official Capacity as County Commissioner ( 2021 )

Fourth Court of Appeals
San Antonio, Texas
June 1, 2021
Nos. 04-19-00714-CV, 04-19-00715-CV, 04-19-00716-CV
The STATE of Texas ex. rel. Todd A. Durden, In His Official Capacity as County Attorney,
Appellant
v.
James T. 'Tully' SHAHAN, In His Official Capacities as County Judge; Mark Frerich, In His
Official Capacity as County Commissioner; Joe Montalvo, In His Official Capacity as County
Commissioner; Dennis Dodson, In His Official Capacity as County Commissioner; Tim Ward,
In His Official Capacity as County Commissioner; Kinney County Commissioners Court and
Kinney County,
Appellees
From the 63rd Judicial District Court, Kinney County, Texas
Trial Court Nos. 4845, 4863, 4866
Honorable Sid L. Harle, Judge Presiding
ORDER
Sitting: Patricia O. Alvarez, Justice
Luz Elena D. Chapa, Justice
Irene Rios, Justice
On May 12, 2021, this court issued its opinions and judgments in these appeals. Motions
for rehearing or en banc reconsideration were due on May 27, 2021. See TEX. R. APP. P. 49.1
On May 20, 2021, Appellant’s putative appellate counsel filed notices of appearance and
opposed motions for thirty-day extensions of time to file motions for rehearing and motions for
en banc reconsideration. The next day, citing changed circumstances, then-appellate counsel
moved to withdraw the notices and motions.
On May 25, 2021, new appellate counsel filed notices of appearance on behalf of “Todd
A. Durden, individually and in his official capacity” and opposed motions for extension of time
to file motions for rehearing and motions for en banc reconsideration.
Also on May 25, 2021, the Kinney County appellees advised this court that effective
January 1, 2021, Brent Smith is the Kinney County Attorney. Citing Rule 7.2, the appellees
asked this court to “amend the caption of the proceeding to reflect the substitution of parties.”
TEX. R. APP. P. 7.2. Rule 7.2 states in pertinent part as follows:
When a public officer is a party in an official capacity to an appeal or original
proceeding, and if that person ceases to hold office before the appeal or original
proceeding is finally disposed of, the public officer’s successor is automatically
substituted as a party if appropriate.
Id.On May 28, 2021, the Kinney County appellees moved to strike the May 25, 2021 notices
of appearance and to deny the motions for extension of time to file motions for rehearing and en
banc reconsideration. The Kinney County appellees assert that, because Todd A. Durden is no
longer the Kinney County attorney, he has no authority to file any motion in his former official
capacity. The appellees also argue that because Durden failed to file notices of appeal in his
individual capacity, he is not a proper appellant. The appellees ask this court to deny the May
25, 2021 notices of appearance and motions for extension of time to file motions for rehearing or
en banc reconsideration.
All pending motions are held in abeyance. This court requests a response from counsel
whose May 25, 2021 notices seek to appear in these appeals on behalf of “Todd A. Durden,
individually and in his official capacity.” If appearing counsel choose to file a response, the
response is due on June 28, 2021.
_________________________________
Patricia O. Alvarez, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 1st day of June, 2021.
___________________________________
MICHAEL A. CRUZ, Clerk of Court