Glenn Beckendorff, in His Official Capacity as Waller County Judge, Frank Pokluda, in His Official Capacity as Waller County Precinct Two Commissioner, and Stan Kitzman, in His Official Capacity as Waller County Precinct Four Commissioner v. City of Hempstead, Texas, Citizens Against the Landfill in Hempstead, Pintail Landfill, LLC, and Waller County, Texas ( 2015 )

ACCEPTED
01-15-00523-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
6/18/2015 1:38:20 PM
CHRISTOPHER PRINE
CLERK
NO. 01-15-00523-CV
IN THE COURT OF APPEALS FILED IN
FOR THE FIRST DISTRICT OF TEXAS 1st COURT OF APPEALS
HOUSTON, TEXAS
AT HOUSTON 6/18/2015 1:38:20 PM
__________________________________________________________________
CHRISTOPHER A. PRINE
Clerk
GLENN BECKENDORFF, IN HIS OFFICIAL CAPACITY
AS WALLER COUNTY JUDGE, ET. AL.
Appellants
v.
CITY OF HEMPSTEAD, TEXAS AND
CITIZENS AGAINST THE LANDFILL IN HEMPSTEAD
Appellees
On Appeal from the 506th Judicial District Court
of Waller County, Texas, Cause No. 13-03-21872;
The Honorable Terry Flenniken, Presiding
CITIZENS AGAINST THE LANDFILL IN HEMPSTEAD’S
MOTION TO DISMISS PURSUANT TO RULE 42.3 AND
MOTION FOR SANCTIONS
Terry L. Scarborough HANCE SCARBOROUGH, LLP
State Bar No. 17716000 400 W. 15th Street, Ste. 950
tscarborough@hslawmail.com Austin, Texas 78701
V. Blayre Peña Telephone: (512)479-8888
State Bar No. 24050372 Facsimile: (512)482-6891
bpena@hslawmail.com
Wesley P. McGuffey
State Bar No. 24088023
wmcguffey@hslawmail.com
ATTORNEYS FOR APPELLEE
CITIZENS AGAINST THE LANDFILL IN HEMPSTEAD
1
TO THE HONORABLE FIRST COURT OF APPEALS:
Comes now Citizens Against the Landfill in Hempstead (CALH) and files
this Motion to Dismiss pursuant to Tex. R. App. P. 42.3 and Motion for Sanctions.
CALH would respectfully show unto the Honorable First Court of Appeals the
following:
I. INTRODUCTION
For the citizens of Waller County, and especially CALH, certain actors
involved in the open meeting violations in Waller County have become akin to the
monster in a horror movie who just won’t die. Every time the protagonist believes
he has defeated the monster, the protagonist is caught by surprise with just one
more attack. While this makes for good entertainment in a horror movie, the legal
system should not tolerate such tactics. Throughout the litigation below, and
previously before this Court, the Appellants have taken gamesmanship to a new
level. This frivolous appeal is another attempt to deplete scarce resources of a non-
profit organization seeking to protect the environment, to ensure open government,
and to exercise its legal rights to challenge the actions of its elected officials.
Pursuant to Tex. R. App. P. 42.3, CALH respectfully requests the Honorable
First Court of Appeals to dismiss this appeal because the Court lacks jurisdiction
when the Appellants do not have standing to bring the appeal. CALH would
further show that Appellants do not have capacity to bring the appeal. CALH
2
further requests that this Court sanction Appellants pursuant to Tex. R. App. P. 45,
Tex. Civ. Prac. & Rem. Code §10.001 et. seq., and Tex. R. Civ. P. 13, and award
CALH its attorney’s fees.
II. BACKGROUND FACTS
This appeal was filed by former County Judge Glenn Beckendorff, former
Commissioner Frank Pokluda, and former Commissioner Stan Kitzman on behalf
of Waller County after the entry of an Agreed Final Judgment on February 20,
2015, to which Waller County agreed. Two separate Notices of Appeal were filed
to instigate this appeal; however, neither document correctly stated that Appellants
were no longer county officials.
This omission is significant when you review these documents, which
purport to be filed by the Appellants in their “official capacity.” The allegation of
“official capacity” appears to be a blatant and intentional misrepresentation to this
Court since Appellants are well aware they no longer hold office. In addition to
failing to inform this Court that Appellants were no longer elected officials and
parties to the litigation below, Appellants also failed to include past related appeals
on the docketing statement filed on April 22, 2015. One can only speculate this
omission was an attempt to forum shop and avoid the First Court of Appeals, who
previously ruled against the pre-trial appeal proceedings of Appellants.
3
As this Court will remember, these parties were previously before the court
for a Petition for Writ of Mandamus (Court of Appeal Number: 01-14-00916-CV)
and Interlocutory Appeal (Court of Appeals Number: 01-14-00946-CV).1 The
facts leading up to the previous appellate proceedings concerned the trial court’s
decision to carry Waller County’s plea to the jurisdiction with the trial of the
merits, which was scheduled to begin December 1, 2014. While Waller County
had notice of the trial setting for over five months, it waited until after the first day
of jury selection to file a petition for writ of mandamus and emergency motion for
stay in an attempt to delay the trial. On November 21, 2014, the Court of Appeals
denied Waller County’s petition for writ of mandamus and dismissed the
emergency motion for stay, as moot.
Two days later, Waller County filed its notice of interlocutory appeal.
Waller County claimed it had a right to appeal by virtue of the denial of its motion
for summary judgment, which allegedly denied its plea to the jurisdiction
impliedly. Waller County conveniently forgot to mention that it had alleged the
exact opposite with the Court of Appeals only a few days earlier. CALH
immediately filed a motion to dismiss the interlocutory appeal. In addition to
dismissal of the appeal, CALH requested the Court of Appeals to lift the automatic
1
CALH requests the Court of Appeals to take judicial notice of its file concerning
the petitions, motions, responses, and orders/judgments contained in Court of
Appeal Number: 01-14-00916-CV and Court of Appeals Number: 01-14-00946-
CV.
4
stay so that the parties could proceed to trial, which was only a week away. On
November 26, 2014, the Court of Appeals granted the motion to dismiss and issued
the mandate. 2
In light of the mandate, the trial court commenced trial and seated the jury
on December 1, 2014. See Exhibit A – Agreed Final Judgment. However,
Appellants continued to take every action to stop the trial, including filing a motion
for en banc consideration and an emergency motion to enforce statutory automatic
stay, or in the alternative writ of prohibition. On December 2, 2014, the Court of
Appeals denied the motion for en banc consideration and dismissed the emergency
motion to enforce statutory automatic stay, or in the alternative writ of prohibition.3
Meanwhile, back at the trial court, the questions of fact were submitted to
the jury at the conclusion of the presentation of evidence. See Exhibit A. In all
nine questions submitted, the jury concluded that Waller County took various
actions, which violated the Texas Open Meetings Act and Public Information Act.
The jury verdict was rendered on December 18, 2014. During the pre-trial
appellate proceedings and through the trial on the merits, Beckendoff, Pokluda,
2
As a point of reference, the notice of interlocutory appeal was filed the Sunday
before Thanksgiving, and the Court issued its mandate around 5pm on the
Wednesday before Thanksgiving.
3
In addition to the inconsistent pleadings Appellants filed with the First Court of
Appeals, Appellants filed almost identical and inherently contradictory
motions/petitions with the Texas Supreme Court, which were denied (See Texas
Supreme Court Case Nos. 14-0972 and 14-1001).
5
and Kitzman were elected officials. However, that changed effective January 1,
2015, as discussed in more detail below.
On January 16, 2015, after the jury verdict was rendered, but before the final
judgment was entered, Waller County filed a motion to dismiss. See Exhibit B –
Waller County’s Motion to Dismiss and/or Motion to Strike. In this motion to
dismiss, Waller County admitted Beckendorff, Pokluda, and Kitzman (Appellants
herein) were no longer members of the Commissioners Court and held no official
capacity with Waller County. Id. at 4. Because two of the Commissioners had lost
their elections, and the County Judge did not seek re-election, “their official
capacities as the representatives and officers of Waller County expired effective
January 1, 2015.” Id. Waller County attached the affidavit of the County Clerk to
verify the fact that Beckendorff, Pokluda, and Kitzman were no longer elected
officials for Waller County.
While Beckendorff, Pokluda, and Kitzman were no longer members of the
Commissioners Court, the current sitting Commissioners authorized their attorneys
to enter settlement negotiations with CALH. See Exhibit C – Minutes Waller
County Commissioners Court Regular Session. Pursuant to those settlement
negotiations, the parties filed a Joint Motion for Entry of Agreed Final Judgment
on February 20, 2015. See Exhibit D – Joint Motion for Entry of Agreed Final
Judgment. That same day, the Agreed Final Judgment was signed after a properly
6
noticed hearing was held before the Court. See Exhibit A. The Agreed Final
Judgment was signed on behalf of the “Attorneys for Waller County Defendants,”
and was agreed as to form and substance. Id. Waller County lodged no objections
in writing to the Agreed Final Judgment or orally during the hearing.
After the Agreed Final Judgment was entered, CALH believed the long saga,
which began two years earlier, was finally over. The Settlement Agreement had
been entered into on behalf of Waller County, and included their officers, agents,
attorneys, and past and present elected officials of Waller County in their official
capacities. See Exhibit E – Compromise Settlement Agreement and Release.
Waller County represented that it had complete and full authority to act on its
behalf and to bind it. Id. at 5. Further, each of the Parties irrevocably waived any
and all rights to appeal any issue related to the claims made in the lawsuit. Id. at 3.
Nevertheless, as evident by this appeal, the monster has not died yet and the saga
continues.
III. MOTION TO DISMISS
This appeal should be dismissed for at least two reasons: 1) Appellants lack
of standing, and 2) Appellants lack of capacity.4 Both of these items are required
4
While CALH’s Motion to Dismiss will focus on these two reasons, CALH has
reviewed both the City of Hempstead’s Motion to Dismiss and Waller County’s
Motion to Dismiss, and agrees with the reasons laid out therein.
7
for this Court to have jurisdiction. Since Appellants lack both, dismissal is
appropriate under Texas Rule of Appellate Procedure 42.3(a).
A. Appellants Lack Standing
“Standing is implicit in the concept of subject matter jurisdiction. Standing
focuses on the question of who may bring an action. . . The general test for
standing is whether 1) there is a real controversy between the parties, 2) which will
actually be determined by the judicial declaration sought.” Lazarides v. Farris,
367 S.W.3d 788, 801 (Tex. App. – Houston [14th Dist.], no pet.)(internal citations
omitted). Here, Appellants cannot meet their burden.
In the first instance, there is no controversy between the parties. The parties
in the proceeding below involved the Waller County Judge, in his official capacity,
and the Waller County Commissioners, in their official capacity. An official
capacity suit is really just another way of pleading a suit against the governmental
entity. City of El Paso v. Heinrich, 284 S.W.3d 366, 373 (Tex. 2009). Here, that
would mean the suit, although including the County Judge and Commissioners in
their official capacities, was against Waller County.
Effective January 1, 2015, Glenn Beckendorff was replaced by Carbett
“Trey” Duhon, III as Waller County Judge. See Exhibit B - Affidavit of Debbie
Hollan attached thereto. On that same date, Appellants Pokluda and Kitzman were
likewise replaced as members on the Waller County Commissioners Court. Id. As
8
shown in Exhibit A, the actual parties on February 20, 2015 agreed to the form and
substance of the Agreed Final Judgment. No lawsuit was filed against Glenn
Beckendorff, personally or in his individual capacity, and as such, he is not a party
and has no standing to individually appeal a judgment. Furthermore, by virtue of
the Agreed Final Judgment, Appellants cannot demonstrate to this Court that a
controversy actually exists.
In the second instance, Appellants cannot demonstrate a particularized injury
in a conflict distinct from that sustained by the public at large. See Lazarides, 367
S.W.3d at 801. An official capacity suit, such as this one, “actually seeks to
impose liability against the governmental unit rather than on the individual
specifically named and ‘is, in all respects other than name ….a suit against the
entity.’” Tex. A&M Univ. Sys. V. Koseoglu, 233 S.W.3d 835, 844 (Tex. 2007). In
the Agreed Final Judgment and Settlement Agreement, Waller County agreed to
the invalidation of a County Ordinance and contract. Waller County also agreed to
pay a sum of money to the City of Hempstead and CALH for attorney’s fees. See
Exhibit A. Appellants Beckendorff, Pokluda, and Kitzman were not ordered to
personally pay any money out of their pocket. At this point in time, Beckendorff,
Pokluda, and Kitzman cannot allege any injury separate and distinct from a
member of the general public as it relates to the Agreed Final Judgment.
9
B. Appellants Lack Capacity
A party has capacity to file or defend a suit if it has the legal authority to act.
Austin Nursing Ctr., Inc. v. Lovato, 171 S.W.3d 845, 848-49(Tex. 2005). Here,
Appellants Beckendorff, Pokluda, and Kitzman have no authority to file this appeal
on behalf of Waller County, as evidenced by the Waller County Commissioners
Court resolution attached as Exhibit A to Waller County’s Motion to Dismiss filed
with this Court. For the Court’s convenience, CALH has attached said resolution
to this Motion as Exhibit F. Specifically, that resolution makes the following
statements:
the Commissioners Court of Waller County, Texas has
given no authorization to pursue an Appeal of the Agreed
Final Judgment, and
the Commissioners Court does not seek to disturb the
Agreed Final Judgment reached with all parties in the
original suit;
Waller County acting by and through its Commissioners
Court respectfully requests that the Court of Appeals . . .
dismiss the current pending matter ….”
Appellants Beckendorff, Pokluda, and Kitzman cannot provide any evidence to
this Court of their capacity to appeal a judgment entered by the trial court against
Waller County.
Furthermore, to allow ex-officials to appeal a judgment against the
governmental entity would lead to a ludicrous result. In essence, the Court of
10
Appeals would be accepting briefs and arguments from Waller County Judge
(Beckendorff) alleging there was reversible error, while Waller County Judge
(Duhon) would argue to uphold the trial court’s judgment. If the court were to
allow this type of schizophrenic appeal, it would be giving more authority to a
former elected official than even the Article III courts possess. See generally Ector
County v. Stringer, 843 S.W.2d 477 (Tex. 1992)(discussing how District Courts
have a limited supervisory role over Commissioners Court and cannot substitute its
discretion for that of the Commissioners Court).
The voters of Waller County have spoken in choosing to elect Appellants
out of office.5 While Appellants may dislike the actions of the current sitting
Waller County Commissioners Court in agreeing to the form and substance of the
Agreed Final Judgment, their complaints are more appropriately dealt with at the
ballot box when they lack capacity to complain in the courts.
IV. MOTION FOR SANCTIONS
There are three sources of authority which regulate attorneys and parties
concerning the filing of pleadings with the courts and specifically prohibiting the
filing of frivolous pleadings. As set forth in detail throughout this motion, the
appeal is frivolous. Therefore, CALH respectfully requests this Court to award it
5
Kitzman and Pokluda lost their elections, while Beckendorff chose not to run for
re-election.
11
just damages against Appellants pursuant to Tex. Civ. Prac. & Rem. Code §10.001
et. seq., Tex. R. Civ. P. 13., and Tex. R. App. P. 45.
A. Authority for Sanctions.
The Civil Practice and Remedies Code provides that the signing of a
pleading or motion is a certificate by the signatory that to the signatory’s best
knowledge, information, and belief, formed after reasonable inquiry,
1) The pleading or motion is not being presented for any improper purpose;
2) Each claim, defense, or legal contention in the pleading or motion is
warranted by existing law or by a nonfrivolous argument for the
extension, modification, or reversal of existing law, or the establishment
of new law; and
3) Each allegation or other factual contention in the pleading or motion has
evidentiary support or is likely to have evidentiary support after a
reasonable opportunity for investigation. Tex. Civ. Prac. & Rem. Code
§10.001.
Texas Rule of Civil Procedure 13 also addresses the certification attorneys
and parties make when they file pleadings, motions, or other papers with the Court.
Under Rule 13, the signature of attorneys and parties certifies that after reasonable
inquiry the instrument is not groundless and brought in bad faith or groundless and
brought for the purpose of harassment. Groundless is defined as “no basis in law
12
or fact and not warranted by good faith argument for the extension, modification,
or reversal of existing law.” Tex. R. Civ. P. 13.
Lastly, as specifically related to appeals, Texas Rule of Appellate Procedure
45 provides for damages if the Court of Appeals determines than an appeal is
frivolous. “An appeal is frivolous if when it is brought there were no reasonable
grounds to believe the judgment would be reversed or when it is pursued in bad
faith.” Mahoney v. Slaughter, No.01-14-00471-CV, 2015 Tex. App. LEXIS 4668,
*10 (Tex. App. – Houston [1st Dist.] May 7, 2015, no pet. h.).
B. Argument for Sanctions
The Court of Appeals should sanction Appellants and their attorneys for the
filing of this appeal and failing to voluntarily dismiss the appeal after notice of
Appellees’ intent to file Motions to Dismiss. The notices of appeal were factually
inaccurate and misleading when they purported to be filed in the official capacity
and on behalf of the Waller County Judge and two Commissioners. Further, the
sworn statements of Appellant Beckendorff, attached to the Motion for Extension
of Time to file Notice of Appeal, confirms the fact that Appellant lacks standing
and capacity. For the convenience of the Court, the affidavits are attached hereto
as Exhibit G.
13
Beckendorff admitted, via affidavit filed in this appellate proceeding, the
following facts:
- He was not County Judge of Waller County after December 31, 2014
because he did not seek re-election.
- He understood that after December 31, 2014 he would no longer be a
party to the lawsuit because he was no longer an elected official.
The attorney for Appellant admitted in his affidavit attached to the same
motion that he knew Beckendorff was no longer County Judge as of December 31,
2014. He also admitted reviewing the “court’s file” and “Agreed Final Judgment.”
The attorney goes on to state that “if Judge Beckendorff is going to have remedies
adjudicated against him in the Judgment, he should not be denied any opportunity
allowing due process of appeal or other challenge . . . .”
Contrary to the sworn statement of Appellants’ attorney, no remedies were
adjudicated against Beckendorff in his individual capacity. As stated in the
previous section, the Agreed Final Judgment declared an ordinance void, declared
a contract void, and ordered Waller County to pay certain attorney’s fees. There is
no allegation, and there has never been any allegation, that Beckendorff, Pokluda,
or Kitzman were parties to the contract which was declared void. Not one of the
Appellants was ordered to personally pay for the other parties’ attorney’s fees.
14
For Appellants’ attorney to claim remedies were adjudicated against
Beckendorff is groundless. There is no basis in law or fact for an attorney to
believe his client has a right to appeal a judgment for which he was not a party and
was not required to pay damages. Further, under these circumstances this appeal is
frivolous because there are no reasonable grounds to believe the agreed judgment
would be reversed when all parties jointly moved for the Agreed Final Judgment to
be entered and the face of the judgment itself shows it was agreed as to form and
substance.
Appellants had an opportunity to pull down this appeal prior to the filing of
the Motions to Dismiss by the City of Hempstead, Waller County, and CALH, but
refused to do so. On May 14, 2015, the City of Hempstead and CALH wrote to
Appellants’ attorney setting forth the specific deficiencies concerning Appellants’
attempt to appeal. See Exhibit H – Letter to David Carp sent on behalf of City of
Hempstead and CALH. In this correspondence, Appellees complain about
Appellants’ lack of standing, in addition to a laundry list of other problems.
Appellees also notified Appellants of their intent to seek sanctions Appellants did
not respond to the correspondence in writing and did not seek to dismiss the
appeal.
15
C. Appropriate Sanctions would be an Award of Attorney’s Fees
As a direct result of this appeal, CALH has incurred reasonable and
necessary attorney’s fees in the amount of $7,500.00. See Exhibit I, Affidavit of
V. Blayre Peña. This represents 20 hours of work at the rate of $375.00 per hour.
The work performed was reasonably necessary to represent CALH and protect its
interest. Id. The amount of work was reasonable given the issues and unusual
aspects of this case. Id. The hourly rate and the total amount of fees are
reasonable for an attorney of Peña’s skill and experience. Id. Because this appeal
was the direct cause of CALH incurring fees, those fees are a reasonable measure
of just damages.
V. CONCLUSION AND PRAYER
When the conduct of Beckendorff, Pokluda, and Kitzman came to light, they
were unable to convince the voters that their conduct should be condoned.
Beckendorff, Pokluda, and Kitzman were also unable to convince a jury of their
peers, which lead to an adverse judgment. It is not known whether Beckendorff,
Pokluda, and Kitzman lobbied the new Commissioners Court. However, if they
did, the Agreed Final Judgment demonstrates they were unsuccessful there as well.
Given the losses Beckendorff, Pokluda, and Kitzman have suffered at each stage, it
would be unjust to allow this appeal to proceed any further. As the current County
Judge was quoted in the papers, the County should be provided an opportunity to
16
start to heal. Allowing a rogue appeal by persons with no standing and no official
capacity prevents that healing from occurring and only works as an injustice.
At some point, the horror movie must end, and most people would want the
protagonist to prevail and the monster to finally die. After a hard and long fought
battle, CALH believed it had finally reached that point. Yet, over the objection of
the real parties in interest, the monster in this story is refusing to die. Only the
dismissal of this appeal can ultimately defeat the monster and allow the
moviegoers to go home.
For all the foregoing reasons, CALH respectfully requests this Court to
dismiss this appeal and award it reasonable and necessary attorney’s fees.
17
Respectfully Submitted,
HANCE SCARBOROUGH, LLP
400 W. 15th Street, Ste. 950
Austin, Texas 78701
Telephone: (512)479-8888
Facsimile: (512)482-6891
By: __/s/ V. Blayre Peña_________
V. Blayre Peña
State Bar No. 24050372
bpena@hslawmail.com
Terry L. Scarborough
State Bar No. 17716000
tscarborough@hslawmail.com
Wesley P. McGuffey
State Bar No. 24088023
wmcguffey@hslawmail.com
COUNSEL FOR APPELLEE
CITIZENS AGAINST THE
LANDFILL IN HEMPSTEAD
18
CERTIFICATE OF CONFERENCE
The undersigned conferred with counsel of record. On May 14, 2015,
CALH and the City of Hempstead sent a letter via email to counsel for Appellants
advising them of the steps Appellees intended to take to get the appeal dismissed
and Appellees’ intent to seek sanctions. Counsel for Beckendorff, Pokluda, and
Kitzman did not respond to the letter in writing and did not withdraw their appeals.
The undersigned further conferred via email sent on June 16, 2015 with all counsel
of record to advise of CALH’s intent to file this motion. Appellee City of
Hempstead, Waller County, and Pintail Landfill LLC are not opposed this motion.
Appellants Beckendorff, Pokluda, and Pokluda have not indicated whether
they oppose this motion.
/s/ V. Blayre Peña
V. Blayre Peña
19
CERTIFICATE OF SERVICE
I certify that on June 18, 2015, a true and correct copy of this document was
forwarded via certified mail, return receipt requested, facsimile, and/or
electronically, to the following:
David A. Carp Hon. Terry Flenniken, Visiting Judge
Hergzog & Carp terryflenniken@gmail.com
427 Mason Park Boulevard 506th Judicial District Court
Katy, Texas 77450 403 West Alamo Street,
Facsimile: (512) 781-4797 Brenham, Texas 77833
Attorneys for Appellants Telephone: (979)251-2760
Facsimile: (979) 277-0030
Eric C. Farrar Brent W. Ryan
efarrar@olsonllp.com bryan@msmtx.com
OLSON & OLSON, LLP MCELROY, SULLIVAN, MILLER,
Wortham Tower, Suite 600 WEBER, & OLMSTEAD, LLP
2727 Allen Parkway P.O. Box 12127
Houston, Texas 77019 Austin, Texas 78711
Telephone: (713)533-3800 Telephone: (512) 372-8111
Facsimile: (713)533-3888 Facsimile: (512)327-6566
Attorneys for Appellee Attorney for Pintail Landfill, LLC
Elton Mathis, Jr. Michael S. Truesdale
Waller County District Attorney mike@truesdalelaw.com
Ruhee G. Leonard Law Office of Michael S. Truesdale, PLLC
Assistant District Attorney 801 West Avenue, Suite 201
645 12th Street Austin, Texas 78701
Hempstead, Texas 77445 Telephone: (512) 482-8671
Facsimile (919) 826-7722 Facsimile: (866) 847-8719
Attorneys for Waller County Attorneys for Pintail Landfill, LLC
/s/ V. Blayre Peña
V. Blayre Peña
20
NO. 01-15-00523-CV
GLENN BECKENDORFF, IN HIS § IN THE FIRST COURT OF
OFFICIAL CAPACITY AS §
WALLER COUNTY JUDGE, ET. AL §
§ APPEALS
v. §
§
CITY OF HEMPSTEAD AND §
CITIZENS AGAINST THE §
LANDFILL IN HEMPSTEAD § HOUSTON, TEXAS
APPENDIX IN SUPPORT OF CALH’S MOTION TO DISMISS AND
MOTION FOR SANCTIONS
CALH submits the following documents in support of Motion to Dismiss
and Motion for Sanctions.
EXHIBIT DESCRIPTION
A Agreed Final Judgment
B Waller County’s Motion to Dismiss and/or Motion to Strike
C Minutes Waller County Commissioner’s Court Regular
Session
D Joint Motion for Entry of Agreed Final Judgment
E Settlement Agreement
F Waller County Commissioners Court Resolution
G Affidavits of Floyd Glenn Beckendorff and David A. Carp
H Letter to David Carp sent on behalf of City of Hempstead
and CALH
I Affidavit of V. Blayre Peña
21
EXHIBIT A
Cause No. 13-03-21872
CITY OF HEMPSTEAD, TEXAS § IN THE DISTRICT COURT OF
Plaintiff, §
§
and §
§
CITIZENS AGAINST THE LANDFILL § WALLER COUNTY, TEXAS
IN HEMPSTEAD §
§
v. §
§
WALLER COUNTY, TEXAS, ET. AL. §
Defendants. § 506TH JUDICIAL DISTRICT
AGREED FINAL JUDGMENT
Before the Court is the above-styled and numbered cause of action. On December 1,
2014, the case was called for trial. Plaintiff City of Hempstead ("Hempstead") appeared through
its attorney of record and announced ready for trial. Plaintiff-Intervenor Citizens Against the
Landfill in Hempstead ("CALH") appeared through its attorney of record and announced ready
for trial. Defendants, Waller County, Texas including the elected officials of the Waller County
Commissioners Court, in their official capacities (collectively "Waller County''), appeared in
person and by their attorney of record and announced not ready for trial. Defendant, Pintail
Landfill, LLC, (''Pintail") appeared in person and by its attorney of record and announced not
ready for trial. After denying the Motions to Abate and Requests for Continuance, a jury,
consisting of 12 qualified jurors having been previously demanded, was duly empanelled and the
case proceeded to trial.
Agreed Final Judgment Page 1
The Court, after examining the record and the evidence and argument of counsel, finds
that venue is proper in Waller County, that the Court has jurisdiction over the subject matter and
the parties in this case, and that the Court has jurisdiction to enter a judgment in this case.
At the conclusion of the evidence, the Court submitted the questions of fact in the case to
the jury. The charge of the Court and the verdict of the jury are incorporated for all purposes by
reference, and attached hereto as Exhibit 1. The Parties also entered into certain Stipulations of
Fact, which are incorporated for all purposed by reference, and attached hereto as Exhibit 2.
Following the verdict of the jury of December 18, 2014, Hempstead, CALH, Pintail
Landfill and Waller County filed a Joint Motion for Entry of Agreed Final Judgment. In said
Motion, the parties represent that they have reached a settlement agreement concerning the jury
verdict and the remaining legal and factual issues pending before the Court and have agreed to
the entry of final judgment.
Accordingly, the Court renders the following Agreed Final Judgment:
IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that Waller County
Ordinance No. 2013-001 is void.
IT IS FURTHER ORDERED that the Host Agreement between Waller County, Texas,
and Pintail Landfill, LLC is void.
IT IS FURTHER ORDERED that Plaintiff City of Hempstead have and recover from
Waller County attorneys' fees in the amount of Two Hundred Forty-Five Thousand Dollars and
no cents ($245,000).
IT IS FURTHER ORDERED that Plaintiff-Intervenor Citizens Against the Landfill in
Hempstead have and recover from Waller County attorneys' fees in the amount of Three
Hundred Twenty-Five Thousand Dollars and no cents ($325,000). I
Agreed Final Judgment Page 2
13 -tJ3 -d!S?2-
IT IS FURTHER ORDERED that the total amount of the judgment rendered will bear
interest at a rate of Five Percent (5%) per annum from the date of this judgment until paid in full.
Pursuant to the terms of the parties' settlement agreement giving rise to this Agreed Final
Judgment, the parties do not present to this Court for adjudication, and this Court does not adjudicate,
any issue concerning any claim, defense, or assertion, whether one or more, that has been or may in
the future be raised in any forum, regarding the validity of Waller County Ordinance No. 2011-001
and/or its applicability to (a) Texas Commission on Environmental Quality MSW Registration No.
40259 (Pintail Landfill Transfer Station), (b) Texas Commission on Environmental Quality MSW
Permit Application No. 2377 (Pintail Landfill), and/or (c) all or any part of the 410.37 acre facility
site described in such Registration and Permit Application.
All costs of court spent or incurred in this cause are to be borne by the party incurring
same. All writs and processes for the enforcement and collection of this judgment may issue as
necessary.
All other relief requested in the live pleadings of any party that is not specifically granted
is DENIED. This is a final judgment that disposes of all claims and parties.
SIGNED thistZLZ day of __7:_/
_____ a._``-~/_~_:-_:-``.
-=-20·15.
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Agreed Final Judgment Page 3
AGREED AS TO FORM AND SUBSTANCE:
Art Pertile
Corey R. Ouslander Jam.es P. Allison
couslander@olsonllp.com J. Eric Magee
OLSON & OLSON, L.L.P. e.magee@allison-bass.com
Wortham Tower, Ste. 600 Allison, Bass & Associates, LLP
2727 Allen Parkway 402 W. 12th St.
Houston, Texas 77019 Austin, Texas 78701
Phone: (713) 533-3800 Phone: (512) 482-0701
Facsimile: (713)533-3888 Facsimile: (512)480-0902
ATTORNEWOR CITY OF HEMPSTEAD ATTORNEYS FOR WALLER COUNTY
By:~
DEFENDANTS
..... \._./
By: J. 'Zvtz_A{ ``
V. Blayre Pena Brent Ryan
0
bpena@hslawmail.com bryan@msmtx.com
Hance Scarborough McElroy, Sullivan, Miller,
400 W. 15th Street, Ste. 950 Weber & Olmstead, L.L.P.
Austin, Texas78701 P.O. Box 12127
Phone: 512-479-8888 Austin, Texas 78711
Fascimile: 512-482-6891 fax Phone: (512) 327-8111
Facsimile: (512)327-6566
Carol Chaney ATTORNEYS FOR PINTAIL LANDFILL, LLC
Carol.chaney@thechaneyfinn.net
Law Office of Carol A. Chaney
820 13th Street
P.O. Box 966
Hempstead, TX 77445
Phone: (979) 826-6660
Fascimile: (979) 826-8989
ATTORNEYS FOR INTERVENORS/CITIZENS
AGAINST LANDFILL
By: 11t``
() c
Agreed Final Judgment Page4
rucu , " ' · ·1 ,
AT 6 : 0 7 O'Clock ~ M
PATRICIA JAMES SPADACHENE
BYWALL~ TEXAS
DEPUTY
.- CAUSE NO. 13-03-21872
CITY OF HEMPSTEAD, Texas, § IN THE DISTRICT COURT OF
Plaintiff §
§
And §
§
CITIZENS AGAINST THE LANDFILL IN §
HEMPSIBAD, §
Plaintiff Intervenor §
§
v. § WALLER COUNTY, TEXAS
§
WALLER COUNTY, TEXAS, COUNTY §
JUDGE BLENN BECKENDORFF, §
COMMISSIONER FRANK POKLUDA, §
COMMISSIONER STAN KITZMAN, §
COMMISSIONER JERON BARNET, §
COMMISSIONER JOHN AMSLER, and § 5061h TIJDICIAL DISTRICT
PINTAIL LANDFILL, L.L.C. §
Defendants. §
CHARGE OF THE COURT
J\1EMBERS OF THE JURY:
After closing arguments, you will go to the jury room to decide the case, answer the
questions that are attached, and reach a verdict. You may discuss the case with other jurors only
when you are all together in the jury room.
This case is submitted to you by asking questions about the facts, which you must decide
from the evidence you have heard in this trial. You are the sole judges of the credibility of the
witnesses and the weight to be given their testimony, but in matters of law, you must be
governed by the instructions in this charge. In discharging your responsibility on this jury, you
will observe all the instructions which have previously been given you. I sh8ll now give you
additional lnstructions which you should carefully and strictly follow during your deliberations.
Remember my previous instructions: Do not discuss the case with anyone else, either in
person or by any other means. Do not do any independent investigation about the case or
conduct any research. Do not look up any words in dictionaries or on the Internet. Do not post
information about the case on the Internet. Do not share any special knowledge or experiences
with the other jurors. Do not use your phone or any other electronic device during your
deliberations for any reason, without permission from the Court. When you enter the jury room
to deliberate, you must surrender your phone and any other electronic device.
1 EXHIBIT
j I
... - · ... , • • •• • • • • •·L
Any notes you have taken are for your own personal use. You may take your notes back
into the jury room and consult them during deliberations, but do not show or read your notes to
your fellow jurors during your deliberations. Your notes are not evidence. Each of you should
rely on your independent recollection of the evidence and not be influenced by the fact that
another juror has or has not taken notes.
You must leave your notes with the bailiff when you are not deliberating. I will make
sure your notes are kept in a safe, secure location and not disclosed to anyone. After you
complete your deliberations, the bailiff will collect your notes, unless you choose to keep them.
When you are released from jury duty, the bailiff will promptly destroy your notes, unless you
have retained them, so that no one can read what you wrote.
Here are the instructions for answering the questions.
1. Do not let bias, prejudice or sympathy play any part in your decision.
2. .Base your answers only on the evidence admitted in court and on the law that is in
these instructions and questions. Do not consider or discuss any evidence that was not admitted
in the courtroom.
3. You are to make up your own minds about the facts. You are the sole judges of
the credibility of the witnesses and the weight to give their testimony. But on matters of law,
you must follow all of my instructions.
4. If my instructions use a word in a way that is different from its ordinary meaning,
use the meaning I give you, which will be a proper legal definition.
5. All the questions and answers are important. No one should say that any question
or answer is not important
6. Amwer "yes" or "no" to all questions unless you are told otherwise. A ''yes"
answer must be based on a preponderance of the evidence. Whenever a question requires an
answer other than ''yes" or "no,'' your answer must be based on a preponderance of the evidence.
The term ''preponderance of the evidence" means the greater weight of credible evidence
presented in this case. If you do not find that a preponderance of the evidence supports a ''yes"
answer, then answer "no." A preponderance of the evidence is not measured by the number of
witnesses or by the number of documents admitted in evidence. For a fact to be proved by a
preponderance of the evidence, you must find that the fact is more likely true than not true.
A fact may be established by direct evidence or by circumstantial evidence or both. A
fact is established by direct evidence when proved by documentary evidence or by witnesses
who saw the ·act done or heard the words spoken. A fact is established by circumstantial
evidence when it may be fairly and reasonably inferred from other facts proved.
2
7. Do not decide who you think should win before you answer the questions and
then just answer the questions to match your decision. Answer each question carefully without
considering who will win. Do not discuss or consider the effect your answers will have.
8. Do not answer questions by drawing straws or by any method of chance.
9. Do not trade your answers. For example, do not say, "I will answer this question
your way if you answer another question my way. n
10. The answers to the questions must be based on the decision of at least 10 of the 12
jurors. The same 10 jurors must agree on every answer. Do not agree to be bound by a vote of
anything less than 10 jurors, even if it would be a majority.
As I have said before, if you do not follow these instructions, it will be juror misconduct,
and I might have to order a new trial and start this process over again. This would waste your
time and the parties' money, and would require the taxpayers to pay for another trial. If a juror
breaks any of these rules, tell that person to stop, and if such juror fails to do so, report it to the
Court.
/
3
·--·· · ::··· ... ···· ·· ······· ...., .
DEFJNITIONS & INSTRUCTIONS
In answering the questions below~ please follow these Q.efinitions and instructions.
1. The term ''Waller County'1 includes the Waller County Commissioners Court,
Judge Glenn Beckendorff and Waller County Commissioners Frank Pokluda, Stan Kitzman,
Jeron Bame~ !!Ild John Amsler.
2. Waller County is a governmental body.
3. All questions for the Jury relate to the time period on or before February 13, 2013.
4
·. - . ...... .. . ........ .. ··---,
DEFINITIONS AND INSTRUCTIONS FOR QUESTION NUMBERS 1, 2, 3, AND 4
1. A governmental body may consult with its attorney in executive session to discuss
the legal issues raised in connection. with a proposed contract or a proposed ordinance, but it may
not discuss non-legal matters.
a. ''Non-legal matters" include but are not limited to: (1) merits of enacting
an ordinance; (2) merits of a proposed contract; (3) financial
considerations of a proposed contract; or (4) matters of public policy; or
(5) merits of an application.
b. Legal issues include advice given to Waller County regarding the legal
ramifications of facts and information and the legality of a proposed
contract or proposed ordinance.
2. "Deliberation" means a verbal exchange during a meeting between a quorum of a
governmental body, or between. a quorum of a governmental body and another person,
co~cerning an issue within the jurisdiction of the governmental body or any public business.
3. "Meeting" means!
a. A deliberation between a quorum of a governmental body or between a
quorum of a governmental body and another person, during which public
business or public policy over which the governmental body has
supervision or control is discussed or considered or during which the
governmental body takes formal action, or
b. A gathering:
i. That is conducted by the governmental body;
ii. At which a quorum of members of the governmental body is
present;
iii. That has been called by the governmental body, and;
iv. At which the members receive information from, give information
to, ask questions of, or receive questions from any third person,
including an employee of the governmental body, about the public
business or public policy over which the governmental body has
supervision or control.
4. "Closed Meeting" means a meeting to which the public does not have access.
5. "Quorum" means a majority of a governmental body.
6. A "walking quorum" occurs when members of a governmental body gather in
numbers th.at do not physically constitute a quorum at any one time but who,
through successive gatherings, secretly, and intentionally, discuss a public matter
with a quorum of that body at a place other than a posted meeting.
5
TI
QUESTION NUMBER 1
Do you find that the Waller County Commissioner's Court deliberated non-legal matters
relating to Ordinance 2013-001 in a closed meeting?
Answer: --'~"-!"-,e_5
___ ("Yes" or "No")
I
6
...... . ·- ·-· `` -· - · .. .. . . ··-·· .. . .... ·· ··--· ·-- ··-· ........ ,
QUESTION NUMBER 2
Do you find that the Waller County Commissioner's Court deliberated non-legal matters
relating to the Host Agreement in a closed meeting?
Answer: ,g-es ("Yes" or ''No")
7
.. .
. . .... .....
. . .
• . . . . . . . . . . . . ,, · - - ---·- · . . . . . .- · - · · · · · · · · · l
QUESTION NUMBER 3
Do you find that at least three (3) members of the Waller County Commissioners Court
eng~ed ina walking quorum related to the following items below?
(a) Host Agreement Answer: -.....-.1-f......;5':;____ (''Yes" or ''No")
(b) Ordinance 2013-901
8
.... .. ' •.• - ·- :-1 ·· --- - - ----· · - - ·- - --- ' . , ... .,
QUESTION NUMBER 4
"Negotiate" means to try to reach an agreement or compromise by discussion with others.
Do you find that one or more members of the Waller County C_ommissioners Court acted
as a committee, authorized by at least three (3) members of the Commissioners Court, to
negotiate the terms of the following items before presentation to the Waller County
Commissioners Court for a vote?
Answer "Yes" or ''No" for each of the following.
(a) Ilost.A.greement Answer: _j_e_S___ (''Yes" or ''No")
(b) Ordinance 2013-001 Answer: --=~=-e5-7--___ (''Yes" or ''No")
9
... ..... . ........... ... ·-.-.··-·-·- ... -····· · ·· ·1 .....................,
.
If you answered "yes" to Question Number 4(a) or 4(b), answer Question Numberl 5,
~
otherwise, do not answer Question Number 5.
QUESTION NUMBER 5
Do you find that there were any committee meetings held that were not open to the public
relating to the following?
(a) Host Agreement Answer: ---~-5..,....____ ("Yes" or "No")
(b) Ordinance 2013-001 Answer: -~-P....,S____ (''Yes" or "No")
I
10
•••• ···· ··· ·-.. · · · · - · · · · • · : - .. . . · - ··· ·- · . .. • • • - · . :• . • ~·.- · · • • •• . • . • ·1
If you answered ''yes" to Question Number 4(a) or 4(b), answer Question Number 6,
otherwise, do not answer Question Number 6 and proceed to Question Number 7.
INSTRUCTION FOR QUESTION NUMBER 6
A "rubber stamp" occurs when a committee's recommendations are approved without
meaningful discussion.
QUESTION NUMBER 6
Do you find that the Commissioners' vote at the Febniary 13, 2013 open meeting was a
rubber stamp of the following items?
(~) Host Agreement Answer: __.,,,``e..,,.$..____ ("Yes" or ''No")
(b) Ordinance 2013-001 Answer: _L\......,._e_.S-"--___ ("Yes" or ''No")
d
11
• ....:._-. i;.• , . •••• •• \,.•,t • •• ,, ~.· .: · ~.~·~. ~ .1;.=-:"l'•o • " O H• too ... ·.· . --...~.- .. -·-· -- . ....I
INSTRUCTION FOR QUESTION NUMBERS 7 THROUGH 9
Public information means information that is written, produced, collected, assembled, or
maintained under a law or ordinance or in connection with the transaction of official business.
Public Information includes all documents, regardless of physical form or characteristics, created
or received by Waller County in the transaction of public business. Public information includes,
but is not limited to, e-mails, text messages, and other electronic recordings.
Waller County is required to preserve and manage its Public Information in accordance
with applicable rules and laws governing the destruction and other disposition of state and local
government records or Public Information.
Each Waller County Commissioner and the Waller County Judge is the officer for public
information and the custodian of the information created or·. received by that county
commissioners' office. Waller County or the elected county officer for information of that
elective county office may determine a time for which information that is not currently in Use
will be preserved, subject to any applicable rule or law governing the destruction and other
disposition of state and local government records or public information.
As an officer for public information, each Waller County Commissioner or County
Judge is responsible for the release of public information. Each is required to: (1) make public
informa,tion available for public inspection and copying; (2) carefully protect public information
from deterioration, alteration, mutilation, loss, or unlawful removal; and (3) repair, renovate, or
rebind public information as necessary to maintain it properly.
Each officer for public information is required to prominently display a sign containing
basic information about the rights of a requestor, the responsibilities of a governmental body, and
the procedures for inspecting or obtaining a copy of public information. The officer shall display
the sign at one or more places in the administrative offices of the governmental body where it is
plainly visible to members of the public and employees of the governmental body whose duties
include receiving or responding to requests under this chapter.
As officers for public information, Waller County Commissioners and the Waller County
Judge must promptly produce public information for inspection, duplication, or both upon
request by any person for public information: "Promptly" means as soon as possible under the
c:ircumstances, that is, within a reasonable time, without delay. If an officer for public
information cannot produce public inforination for inspection or duplication within 10 business
days after the date the information is requested, the officer must certify that fact in writing to the
requestor and set a date and hour within a reasonable time when the information will be available .
for inspection or duplication.
12
... .. , ·-.·-, · · ~· - - ....
QUESTION NUMBER 7
Do you find that County Judge Glenn Beckendorff failed to comply with any of the
following?
(a) Protecting public information from deterioration, alteration, mutilation, loss 1 or
unlawful removal;
(b) Displaying a sign contaming basic information about the rights of a requestor, the
responsibilities of a governmental bo.dy, and the procedures for mspecting or
obj:a.ining a copy of public information at one or more places in the administrative
offices of the governmental body where it is plainly visible to members of the public
and employees of the governmental body;
(c) Promptly producmg public information for inspection, duplication, or both upon
request by any person for public information;
(d) Certifying m writing to the requestor within 10 busmess days after the date the
information was requested, that public information requested could not be produced
for inspection or duplication;
(e) Notifying the requestor within 10 business days after the request of a date and hour
within a reasonable time when the information would be available for mspection or
duplication to the requestor.
("Yes" or "No")
I
13
QUESTION NUMBER 8
Do you find that Waller County Precinct Two Commissioner Frank Pok:luda failed to
comply with any of the following?
(a) Protecting public information from deterioration, alteration, mutilation, ~ass, or
unlawful removal;
(b) Displaying a sign containing basic information about the rights of a requestor, the
resporuibiliti.es of a governmental body, and the prnc~dures . for inspecting or
obtaining a copy of public information at one or more places in the administrative
offices of the governmental body where it is plainly visiple to members of the public
and employees of the governmental body;
(c) Promptly producing public information for inspection, duplication, or both upon
request by any person for public infonnation;
(d) Certifying in writing to the requester within 10 business days after the date the
information was requested, that puhli~ information requested could not be produced
for inspection or duplication;
(e) Notifying the requester within 10 business days after the request of a date and hour
within a reasonable time when the information would be available for inspection or
duplication to the requester.
Answer: -~-+"'~,,,..,_)_ _ _ ("Yes" or ''No")
14
QlJESTIONNUMBER 9
Do you find that Waller County Precinct Four Commissioner Stan Kitzman failed to comply with
any ofthe following?
(a) Protecting public information from deterioration, alteration, mutilation, loss, or
unlawful removal;
(b) Displaying a sign containing basic information about the rights of a requestor, the
responsibilities of a governmental body, and the procedures for inspecting or
obtaming a copy of public infonnation at one or more places in the administrative
offices of th.e governmental body where it is plainly visible to members of the public
and employees of the governmental body;
(c) Promptly producing public information for inspection, duplication, or both upon
request by any person for public infonnation;
(d) Certifying in writing to the requester within 1O business days after the date the
information was requested, th.at public infonnation requested could not be produced
for inspection or duplication;
(e) Notifying the requestor within 10 business days after the request of a date and hour
within a reasonable time when the information would be available for inspection or
duplication to the requester.
Answer: -``f:_..S_ _ _ ("Yes" or "No")
15
•U o + • • • • • • , . • ••• • • • • • • , .. , , . , , . . . ~ -~ • • • ••1J•.. •• ~ ••'I o
After you retire to the jury room, you will select your own presiding juror. The first thing
the presiding juror will do is to have this complete charge read aloud and then you will deliberate
upon your answers to the questions asked.
It is the duty of the presiding juror-
1. to preside during your deliberations,
2. to see that your deliberations are conducted in an orderly manner and in
accordance with the instructions in this charge,
3. to write out and hand to the bailiff any communications concerning the
case that you desire to have delivered to the judge,
4. to vote on the questions,
5. to write your answers to the questions in the spaces provided, and
6. to certify to your verdict in the space provided for the presiding juror's
signature or to obtain the signatures of all the jurors who agree with the
verdict if your verdict is less th.an unanimous.
You should not discuss the case with anyone, not even with other members of the jury,
unless all of you are present and assembled in the juzy room. Should anyone attempt to talk to
you about the case before the verdict is returned, whether at the courthouse, at your home, or
elsewhere, please inform the judge of this fact.
If you have a question, you must submit such question in writing to the Court. The
Presiding Juror must write out the question, sign same and hand the note to the Bailiff, who will
present it to the Couri:. Do not discuss _the question with the Bailiff.
When you have answered all the questions you are required to answer under the
instructions of the judge and your presiding juror has placed your answers in the spaces provided
and signed the verdict as presiding juror or obtained the signatures, you will inform the bailiff at
the door of the jury room that you have reached a verdict, and then you will return. into co
with your verdict
16
• • •• ".;: •• · ·:-: ""'.! - - ,• ••
Certificate
. .
herewith return same into court as our verdict. '!/Ir
We, the jury, have answered the above and foregoing questions as herein indicated, and
ve.rd
l c..--t-'
(To be signed by the presiding juror if th~is unanimous.)
PRESIDING JUROR
Printed Name of Presiding Jur~ ~
1Jtfd1c,'{- 7~ u
(To be signed by those rendering the verdict if the)l11fis not unanimous.)
Jurors' Printed Names
C~'-cu-{ es b , s`` µ ,u.e0 6
//)1cH (t-E- ~ ~ _1~ ft:N NON
:?t~ Beqw
8c.a!t' !Ar. kA./V'-;!1~ (/r,
Ko&ert. l; DJ?,'"1.c_ k
3 Up·~ L,1/c~
I .
17
CAUSE NO. 13-03-21872
CITY OF HEMPSTEAD, Texas, § IN TIIE DISTRICT COURT OF
Plaintiff §
§
And §
§
CITIZENS AGAINST THE LANDFILL IN §
HEMPSTEAD, §
Plaintiff Intervenor §
§
v. § WALLER COUNTY, TEXAS
§
WALLER COUNTY, TEXAS, COUNTY §
JUDGE BLENN BECKENDORFF, §
COMMISSIONER FRANK POKLUDA, §
CO:MMISSIONER STAN KITZMAN, §
COMMISSIONER JERON BARNET, §
COMMISSIONER JOHN AMSLER, and § 506th JUDICIAL DISTRICT
PINTAIL LANDFILL, L.L.C. §
Defendants. §
AGREED STIPULATIONS OF FACT
COMES NOW Plaintiff City of Hempstead, Plaintiff Intervenor Citizens Against
the Landfill in Hempstead, and Defendants Waller County, Texas, County Judge Glenn
Beckendorff, Commissioner Frank Pokluda, Commissioner Stan Kitzman, Commissioner
Jeron Barnett, Commissioner John Amsler, and Pintail Landfil~ LLC and presents these
Agreed Stipulations of Fact to the Court. The Parties agree that the existence of such
stipulations shall not be published to the Jury or mentioned in argument before the jury.
I. Agreed Stipulations of Fact Regarding Contract Exception to Open Meetings
Act, Texas Government Code§ 551.0725.
Waller County Commissioners Court did not invoke Texas Government Code
§ 551.0725 (relating to Deliberation Regarding Contract Being Negotiated) to enter
executive session or closed meeting on February 13, 2013, JanuaI)' 2, 2013, or December
~
1``~ cu. /;2,/7,)Id. Moreover, the relief sought by Hempstead includes the
following:
a. A judgment declaring that acts of County Judge Glenn Beckendorff and
County Commissioners John Amsler, Frank Pokluda, Jeron Barnett, and
Stan Kitzman, in passing Ordinance No. 2013-001, adopting the Order
“Concerning Host Agreement between Waller County, Texas and Pintail
Landfill, LLC,” and entering into the Host Agreement with Pintail
Landfill, LLC, are outside their statutory authority;
b. A judgment declaring that Defendant Waller County Commissioners
Court Ordinance No. 2013-001, is unauthorized, void and of no legal
effect because it designates an area within the City’s ETJ as the only area
a landfill may be located in Waller County;
c. A judgment declaring the “Host Agreement” and Order “Concerning Host
Agreement between Waller County, Texas and Pintail Landfill, LLC”
dated February 13, 2013, are unauthorized, void, of no legal effect, and in
violation of existing statutes controlling landfills in Texas;
d. A judgment declaring the “Host Agreement” and Order “Concerning Host
Agreement between Waller County, Texas and Pintail Landfill, LLC”
dated February 13, 2013, is unauthorized, void, and of no legal effect
because of violations of the Texas Open Meetings Act;
e. A permanent injunction prohibiting Waller County from designating an
area in the City’s ETJ as an area suitable for landfills;
f. An injunction prohibiting Waller County from executing a “Host
Agreement” or any other document between Waller County, Texas and
Pintail Landfill, LLC that ”licenses” and/or regulates a landfill in the area
that is included in the City’s ETJ;
g. A judgment awarding the City reasonable and necessary attorney’s fees;
h. A judgment awarding the City costs of suit; and
i. Such other and further relief to which the City may show itself entitled.
MOTION TO DISMISS
PAGE 2 OF 6
Id. at ¶ 45.
As the Plaintiff Intervenor, CALH filed its Petition in Intervention and Application for
Temporary Restraining Order, Temporary Injunction, and Permanent Injunction on March 21,
2013. See CALH’s Petition in Intervention. On April 11, 2014, CALH filed its Second
Amended Petition in Intervention. See CALH’s Second Amended Petition in Intervention.
CALH sought the following relief in its Petition in Intervention: (A) a declaratory judgment
finding that Waller County violated the Open Meetings Act, Public Information Act, and Local
Government Records Act; (B) a declaratory judgment finding that Waller County acted ultra
vires and in violation of the Texas Health & Safety Code in enacting the 2013 Ordinance; (C) a
permanent injunction enjoining, staying, voiding, and reversing the Waller County
Commissioners Court actions related to the Pintail Landfill, Pintail’s pending permit applications
with the TCEQ, and Host Agreement which were improperly noticed in the December 18, 2012,
January 2, 2013, February 12, 2013 and February 13, 2013 Notices of Meeting; (D) a permanent
injunction enjoining, staying, reversing, voiding, and preventing the effectiveness of Waller
County Ordinance No. 2013-001 and the Host Agreement between Waller County and Pintial
Landfill, LLC; and (E) a permanent injunction enjoining and preventing Waller County from
continuing to violate the Open Meetings Act, Public Information Act, and Local Government
Records Act. Id. Specifically, CALH alleged that the violations of the Open Meetings Act
included: (1) inadequate notice under the Open Meetings Act; (2) engaging in walking quorums;
(3) improperly convening executive session as o the Host Agreement and the 2013 Ordinance;
(4) failing to keep a tape recording of executive session; (5) failure to keep certified agendas
during executive session in compliance with the Open Meetings Act requirements; and (6) that
MOTION TO DISMISS
PAGE 3 OF 6
the votes in open session concerning the Host Agreement and the 2013 ordinance were no more
than a rubber stamp. Id. at ¶¶ 56-70.
As of January 1, 2015, Defendants Beckendorff, Pokluda and Kitzman are no longer
members of the Waller County Commissioners Court and hold no official capacity with Waller
County, Texas.
II.
Motion to Dismiss
Waller County moves for dismissal and/or request that the Court strike former Waller
County Judge Glenn Beckendorff, former Waller County Commissioner Frank Pokluda, and
former Waller County Commissioner Stan Kitzman as parties in this matter for all claims
asserted against them in their official capacities.
In the present matter, Defendants Beckendorff, Pokluda and Kitzman have only been
sued in their official capacities. Pursuant to Texas Constitution, Article V, Section 18,
Defendants Beckendorff, Pokluda and Kitzman’s successors have been elected and qualified to
hold the offices of Waller County Judge, Waller County Commissioner – Precinct 2 and Waller
County Commissioner Precinct 4, respectively. Therefore, Defendants Beckendorff, Pokluda
and Kitzman’s official capacities as the representatives and officers of Waller County expired
effective January 1, 2015. See attached Exhibit A.
Further, there is no longer a justiciable controversy that exists against these Defendants as
they no longer hold public office for Waller County, Texas. Specifically, a declaratory judgment
is appropriate only if a justiciable controversy exists as to the rights and status of the parties and
the controversy will be resolved by the declaration sought. To constitute a justiciable
controversy, there must exist a real and substantial controversy involving genuine conflict of
tangible interests, not merely a theoretical dispute. Bonham State Bank v. Beadle, 907 S.W.2d
MOTION TO DISMISS
PAGE 4 OF 6
465 (Tex. 1995); Noell v. Air Park Homeowners Ass'n, Inc., 246 S.W.3d 827 (Tex. App. Dallas
2008), petition for review filed, (Nov. 6, 2008). A UDJA action will lie within the subject-
matter jurisdiction of the district courts when there is (1) a justiciable controversy as to the rights
and status of parties actually before the court for adjudication; and (2) the controversy will be
actually resolved by the declaration sought. Brooks v. Northglen Ass'n, 141 S.W.3d 158 (Tex.
2004); Texas Dept. of Ins. v. Reconveyance Services, Inc., 240 S.W.3d 418 (Tex. App. Austin
2007), petition for review filed, (Nov. 14, 2007).
Prayer
For these reasons, Waller County requests that the Court dismiss and/or strike former
Waller County Judge Glenn Beckendorff, former Waller County Commissioner Frank Pokluda,
and former Waller County Commissioner Stan Kitzman as parties in this matter.
Respectfully submitted,
/s/ J. Eric Magee
James P. Allison
SBN: 01090000
j.allison@allison-bass.com
J. Eric Magee
SBN: 24007585
e.magee@allison-bass.com
ALLISON, BASS & MAGEE, L.L.P.
A.O. Watson House
402 W. 12th Street
Austin, Texas 78701
(512) 482-0701 telephone
(512) 480-0902 facsimile
MOTION TO DISMISS
PAGE 5 OF 6
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of Waller County’s Motion to Dismiss and/of
Motion to Strike was this 16th day of January, 2015, delivered via e-service and electronically to
the following:
Arthur L. Pertile III via email: apertile@olsonllp.com,
Kelly Dempsey couslander@olsonllp.com, and
Corey R. Ouslander Kdempsey@olsonllp.com
Olson & Olson, LLP
Wortham Tower, Suite 600
2727 Allen Parkway
Houston, Texas 77019
Attorneys for City of Hempstead
Terry L. Scarborough via email: bpena@hslawmail.com
Michael L. Woodward
V. Blayre Pena
Hance Scarborough, LLP
400 W 15th #950
Austin, Texas 78701
Carol A. Chaney via email: carol.chaney@thechaneyfirm.net
Law Office of Carol A. Chaney
820 13th Street
P.O. Box 966
Hempstead, Texas 77445
Attorneys for Citizens Against the Landfill in
Hempstead
Brent W. Ryan via email: bryan@msmtx.com
McElroy, Sullivan & Miller, L.L.P.
P.O. Box 12127
Austin, Texas 78711
Attorney for Pintail Landfill L.L.C.
/s/ J. Eric Magee
James P. Allison / J. Eric Magee
MOTION TO DISMISS
PAGE 6 OF 6
EXHIBIT A
Cause No. 13-03-21872
CITY OF HEMPSTEAD, TEXAS § IN THE DISTRICT COURT OF
Plaintiff, §
§
and §
§
CITIZENS AGAINST THE LANDFILL § WALLER COUNTY, TEXAS
IN HEMPSTEAD §
§
v. §
§
WALLER COUNTY, TEXAS, ET. AL. §
Defendants. § 506TH JUDICIAL DISTRICT
AFFIDAVIT OF DEBBIE HOLLAN
STATE OF TEXAS §
§ KNOW ALL BY THESE PRESENTS:
COUNTY OF WALLER §
BEFORE ME, the undersigned authority, on this date appeared an individual identified to
me as Debbie Hollan, who upon her oath states and affirms as follows:
"My name is Debbie Hollan. I am over the age of eighteen, of sound mind and fully
competent to make this affidavit. All matters stated in this affidavit are true and correct to my
personal knowledge.
I am the duly elected, qualified and serving County Clerk of Waller County, Texas. I
was first elected to this office in November 2010, and I have continuously held office as County
Clerk of Waller County, Texas, since January 1, 2011.
A general election was held in November 2014, in part, for the election of the following
Waller County officials: (1) County Judge of Waller County, Texas; (2) County Commissioner-
Precinct 2 of Waller County, Texas; and (3) County Commissioner - Precinct 4 of Waller
County, Texas. As of January 1, 2015, the duly elected, qualified and serving County Judge of
Debbie Hollan Affidavit
Page 1 of2
Waller County, Texas, is the Honorable Carbett "Trey" J. Duhon III. The duly elected, qualified
and serving County Commissioner - Precinct 2 of Waller County, Texas, is the Honorable
Russell Klecka. The duly elected, qualified and serving County Commissioner - Precinct 4 of
Waller County, Texas, is the Honorable Justin Beckendorff.
Former Waller County Judge Glenn Beckendorff, former Waller County Commissioner
Frank Pokluda (Precinct 2), and former Waller County Commissioner Stan Kitzman (Precinct 4)
are no longer elected officials for Waller County, Texas.
All matters stated herein are true and correct to my personal knowledge.
Debbie Hollan I~
Waller County Clerk
SUBSCRIBED AND SWORN before me, to certify which witness my hand and seal of
office, this ~ day of January, 2015.
Debbie Hollan Affidavit
Page 2 of2
EXHIBIT C
MINUTES
WALLER COUNTY COMMISSIONER'S COURT
REGULAR SESSION
MONDAY - JANUARY 12, 2015
BE IT REMEMBERED that the Honorable Commissioner's Court of Waller County,
Texas, met in REGULAR SESSION on Monday, the 12th day of January 2015 at its meeting
place in the Waller County Courthouse, Hempstead, Texas. The meeting was called to order
by Waller County Judge Trey Duhon at 9:00 a.m. with the following members of the Court
present to-wit:
Carbett "Trey" J. Duhon III, County Judge
John A. Amsler, Commissioner Precinct 1
Russell Klecka, Commissioner Precinct 2
J eron Barnett, Commissioner Precinct 3
Justin Beckendorff, Commissioner Precinct 4
Debbie Hollan, County Clerk
Delivery of Invocation by: Commissioner Amsler
Pledge to the American Flag and Texas Flag led by: Commissioner Barnett
1. Approval of Agenda.
Motion to approve by Commissioner Barnett, seconded by Commissioner Beckendorff.
Motion carried.
Judge Trey Duhon - Yes Commissioner Amsler - Yes Commissioner Klecka - Yes
Commissioner Barnett - Yes Commissioner Beckendorf! - Yes
2. Approval of the minutes - 1 Set
Motion to approve one set of minutes by Commissioner Barnett, seconded by Commissioner
Beckendorf£'
Motion carried.
Judge Trey Duhon - Yes Commissioner Amsler - Yes Commissioner Klecka - Yes
Commissioner Barnett - Yes Commissioner Beckendorf! - Yes
Minutes approved: January 7, 2015 Regular Session
PUBLIC COMMENT - None
COUNTY JUDGE
3. Discuss and take action to modify Rules of Order for Waller County Commissioner
Court meetings so that:
a) Consent Agenda can be considered and voted upon without being read; and
b) Agenda items only read once after the agenda number is announced and motion is
made and seconded.
Motion to approve by Commissioner Amsler, seconded by Commissioner Barnett.
Motion carried.
Judge Trey Duhon - Yes Commissioner Amsler - Yes Commissioner Klecka - Yes
Commissioner Barnett - Yes Commissioner Beckendorf! - Yes
January 12, 2015 Regular Session
STATE OF TEXAS
COUNTY OF WAUER
I, OEB~E HOUAN, County Clerk, waner County, Texas.
do hereby oertify ttl6t this ia a true and conect copy
as same appeors of record In my oflioe. ~ my hSnd'
anc1 sea1 ot ~on JAN 1 3 2015
"'``' DEBBIE HOLLAN, Cour:ty Cleftt
\\~,
````·~ ~­
tePSibm ~
4. Request approval to transfer fixed asset to the Maintenance Department.
Motion to approve by Commissioner Amsler, seconded by Commissioner Barnett.
Motion carried.
Judge Trey Duhon -Yes Commissioner Amsler - Yes Commissioner Klecka - Yes
Commissioner Barnett - Yes Commissioner Beckendorf! - Yes
CONSENT AGENDA
5. Discuss and take action to approve payment on the following invoices:
• $323.88 to Action Rental for Invoice # 080955
• $1,521.00 to Telomack Cabling Solution for Invoice# W8197
from line item 600-600-581822 [Equip/Radio & Accessories] .
• $980.00 to Telomack Cabling Solution for Invoice # W8198
• $290.45 to Home Depot for Invoice dated 12/ 19/1 4
• $ 10.98 to Home Depot for Invoice dated 12/2111 4
from line item 600-600-587518 [JP 2].
• $923.02 to Hometown Hardware for Invoice # 67689/2
• $ 57.97 to Hometown Hardware for Invoice# 67713/2
• $ 195.63 to Hometown Hardware for Invoice # 67733/2
from line item 600-600-587519 [JP 3].
• $2,250.00 to Harris County Treasurer for Invoice # AH008754
from line item 125-423-540702 [Autopsy].
• $940.00 to Schmidt Funeral Home for invoice dated 12/23/1 4
• $940.00 to Schmidt Funeral Home for invoice dated 12/26/ 14
from line item 125-423-540705 [Transport to Morgue].
• $885.00 to TAC Security & Video for invoice # 15112401 [Courthouse
Surveillance System]
• $80.00 to TAC Security & Video for invoice # 15547401 [Courthouse Hold-Up
Alarm]
• $30.00 to TAC Security & Video for invoice # 15522001 [JP 1 Hold-Up Alarm]
• $204.50 to TAC Security & Video for invoice # 15111601 [JP 2 Burglar Alarm
& DVR System]
• $115.00 to TAC Security & Video for invoice # 15520101 [JP 4 Burglar, Hold-
Up, Access Control and DVR Monitors]
from Line Item 11 7-428-568425 [Special Revenue Courthouse Security - Miscellaneous
Security].
Motion to approve by Commissioner Barnett, seconded by Commissioner Beckendorff.
Motion carried.
Judge Trey Duhon - Yes Commissioner Amsler - Yes Commissioner Klecka - Yes
Commissioner Barnett - Yes Commissioner Beckendorf! - Yes
January 12, 20 15 Regular Session
S'tAiE. OF TEXl\S
COUNT'f Of W/.:.lLER
I, DEBBIE HOLLAN. C.ounly Cler\(, Waller~County, T&>GBS.
do hereby oeltify th;At 1hia la a truo and conect OOf1I ~
a$i~1):-r1s ~sm o1 reCOfd k1 my office. Wltn868 rrcy hand
and`` of office 00 JAN 1 3 20 15
~
``~""'*~;· DEBBIEH~ . ci8r1< _
,.~,r.~,, · s~
~ ~ B·
p n ~
--
. ..:-
TREASURER
6. Request by County Treasurer for approval and/or release of securities pledged by First
National Bank of BellYille I \!/aller Branch.
Item WITHDRAWN.
7. Request by County Treasurer to authorize Judge Duhon to sign TAC HEBP Member
Contract Designation Form.
Motion to approve by Commissioner Beckendorff, seconded by Commissioner Amsler.
Motion carried.
Judge Trey Duhon - Yes Commissioner Amsler - Yes Commissioner Klecka - Yes
Commissioner Barnett - Yes Commissioner Beckendorf! - Yes
8. Request by County Treasurer to authorize Judge Duhon to sign Healthy County
Wellness Coordinator and Wellness Sponsor Designation Form.
Motion to approve by Commissioner Beckendorff, seconded by Commissioner Barnett.
Motion carried.
Judge Trey Duhon - Yes Commissioner Amsler - Yes Commissioner Klecka - Yes
Commissioner Barnett - Yes Commissioner Beckendorf! - Yes
COUNTY CLERK
9. Request approval to transfer fixed assets to the IT and Maintenance Department(s).
Motion to approve by Commissioner Barnett, seconded by Commissioner Beckendorff.
Motion carried.
Judge Trey Duhon - Yes Commissioner Amsler - Yes Commissioner Klecka - Yes
Commissioner Barnett - Yes Commissioner Beckendor:fl - Yes
COUNTY ENGINEER
10. Recommend the approval of a Utility Permit for Wapiti Operating, LLC, for the
installation of two (2) water disposal lines in the right-of-way of Donigan Road.
Motion to approve by Commissioner Barnett, seconded by Commissioner Beckendorff.
Motion carried.
Judge Trey Duhon - Yes Commissioner Amsler - Yes Commissioner Klecka - Yes
Commissioner Barnett - Yes Commissioner Beckendorf! - Yes
11. Recommend the approval of a Utility Permit for San Bernard Electric Coop., Inc. for the
installation of one (1) power pole in the right-of-way of Kickapoo Road.
Motion to approve by Commissioner Barnett, seconded by Commissioner Beckendorff.
Motion carried.
Judge Trey Duhon - Yes Commissioner Amsler - Yes Commissioner Klecka - Yes
Commissioner Barnett - Yes Commissioner Beckendorf! - Yes
MISCELLANEOUS
12. Discuss and take action to approve Court Order setting the pay for Jurors in 2015 and
providing food and lodging for Jurors in certain cases and instances.
Motion to approve by Commissioner Barnett, seconded by Commissioner Beckendorff.
Motion carried.
Judge Trey Duhon - Yes Commissioner Amsler - Yes Commissioner Klecka - Yes
Commissioner Barnett - Yes Commissioner Beckendorf! - Yes
January 12, 2015 Regular Session
STATE OF TEXAS
COUNTY OF WAUER
I, DEBBIE HOUAN, County Cleek, Wallet County, T - .
do hereby o.lflify that this is a true and coned copy
811 same ai:rpssr.o of rcccro in my office. Wftnm roY hand
and seal of office on JAN I 3 "
@~
~ £.u15
DEBBIE~
"'
--
13. Discuss and take action to approve Court Order setting allowances for travel outside the
County in 2015.
Motion to approve by Commissioner Barnett, seconded by Commissioner Beckendorff.
Motion carried.
Judge Trey Duhon - Yes Commissioner Amsler - Yes Commissioner Klecka - Yes
Commissioner Barnett - Yes Commissioner Beckendorff - Yes
14. Spread upon the minutes the Notice of Demolition by City of Waller for two buildings
located within its city limits.
No action required.
15. Discuss and take action to approve the payment of $17,500.00 to Waller County
Economic Development from line item 125-411-547200 [Economic Development] for
1st quarterly payment.
Motion to approve by Commissioner Barnett, seconded by Commissioner Beckendorff.
Motion carried.
Judge Trey Duhon - Yes Commissioner Amsler - Yes Commissioner Klecka - Yes
Commissioner Barnett - Yes Commissioner Beckendorf! - Yes
16. Discuss and take action to approve payment to Johnston, LLC for the following invoices:
• $66,500.00 for Invoice# 0002885 for Jail Feasibility Study
• $1,475.07 for Invoice# 0002865 for Waller County Facility Assessments
from line item 600-600-545405 [Professional Services]
Motion to approve by Commissioner Beckendorff, seconded by Commissioner Barnett.
Motion carried.
Judge Trey Duhon - Yes Commissioner Amsler - Yes Commissioner Klecka - Yes
Commissioner Barnett - Yes Commissioner Beckendorf! - Yes
AUDITOR
17. Request by County Auditor for approval of quarterly reimbursement of Juror Payments.
Motion to approve by Commissioner Barnett, seconded by Commissioner Beckendorff.
Motion carried.
Judge Trey Duhon - Yes Commissioner Amsler - Yes Commissioner Klecka - Yes
Commissioner Barnett - Yes Commissioner Beckendorff - Yes
18. Request by County Auditor for approval and/or ratification of Accounts Payable.
Motion to approve and/or ratify by Commissioner Barnett, seconded by Commissioner
Beckendorff.
Motion carried.
Judge Trey Duhon -Yes Commissioner Amsler - Yes Commissioner Klecka - Yes
Commissioner Barnett - Yes Commissioner Beckendorff - Yes
EXECUTIVE SESSION
19. Discussion and possible action regarding case entitled City ofHempstead and Citizens
Against the Landfill in Hempstead v. Waller County, Texas, et al.; Cause No. 13-03-
21872; In the 506th Judicial District Court of Waller County, Texas; Waller County
Ordinance No. 2013-001 and the Host Agreement between Waller County, Texas and
Pintail Landfill, L.L.C. [Executive Session as requested [pursuant to Texas
Government Code, Title 5, Subchapter D. Section 551.071 9 (Consultation with
Attorney)]
January 12, 2015 Regular Session
STATE OF TEXAS
COUNTY OF WALLER ' - - - ,!
I DEBBIE HOLLAN, County Oel'k..Y\faller County, T....../' •
do ;,areb'/ ~J:Jrt1fy th
·-1 :::::
v.
§
§
§
-
WALLER COUNTY, TEXAS, ET. AL. §
Defendants. § 506TH JUDICIAL DISTRICT
JOINT MOTION FOR ENTRY OF AGREED FINAL JUDGMENT
Plaintiff City of Hempstead ("Hempstead"), Plaintiff-Intervenor Citizens Against the
Landfill in Hempstead ("CALH"), Defendant Pintail Landfill, LLC ("Pintail") and Defendant
Waller County, Texas; Glenn Beckendorff, in his official capacity as County Judge of Waller
County, Texas; John Amsler, Frank Pokluda, Jeron Barnett, and Stan Kitzman in their official
capacities as County Commissioner for Waller County, Texas, (collectively "Waller County''),
file this Agreed Joint Motion for Entry of Agreed Final Judgment.
1. On March 20, 2013, Hempstead filed suit against Waller County and Pintail for
injunctive and declaratory relief. CALH filed its petition in intervention on March 21, 2013. On
April 11, 2014, Hempstead filed its Second Amended Petition for Declaratory and Injunctive
Relief and CALH filed its Second Amended Petition in Intervention.
2. Pintail filed cross-claims and counter-claims, which were subsequently non-suited
with the exception of Pintail's claim under the UDJA that Ordinance 2013-001 was valid.
Agreed Joint Motion for Entry of Agreed Final Judgment Page 1
3. After a trial on the merits, the Court submitted the case to the jury on December
18, 2014. The charge and verdict is attached hereto as Exhibit A, and fully incorporated by
reference.
4. On January 14, 2015, CALH filed its First Amended Motion to Enter Judgment
on the Verdict and First Amended Motion to Enter Judgment on Outstanding Issues of Law. On
January 15, 2015, Hempstead filed its First Amended Motion for Entry of Judgment. On January
16, 2015, Waller County and Pintail filed their Motions for Judgment Notwithstanding the
Verdict and Responses to CALH's and Hempstead's Motions to Enter Judgment on the Verdict
and Motions to Enter Judgment on Outstanding Issues of Law.
5. Subsequently, the Parties have entered into settlement negotiations and have
reached a settlement agreement for entry of an agreed final judgment, resolving all issues in this
lawsuit, except any claim, defense, or assertion, whether one or more, that has been or may in the
future be raised in any forum, regarding the validity of Waller County Ordinance No. 2011-001
and/or its applicability to (a) Texas Commission on Environmental Quality MSW Registration
NO. 40259 (Pintail Landfill Transfer Station), (b) Texas Commission on Environmental Quality
MSW Permit Application No. 2377 (Pintail Landfill), and/or (c) all or any part of the 410.37 acre
facility site described in such registration and permit application. The Parties request the Court
to enter the judgment attached hereto as Exhibit B.
6. All Parties agree to the proposed Agreed Final Judgment.
The Parties respectfully request that the Court grant their Joint Motion for Entry of
Agreed Final Judgment.
Agreed Joint Motion for Entry of Agreed Final Judgment Page 2
Respectfully submitted,
Art Pertile Jarnes P. Allison
Corey R. Ouslander J. Eric Magee
couslander@olsonllp.com e.magee@allison-bass.com
OLSON & OLSON, L.L.P. Allison, Bass & Associates, LLP
Wortham Tower, Ste. 600 402 W. 12th St.
2727 Allen Parkway Austin, Texas 78701
Houston, Texas 77019 Phone: (512) 482-0701
Phone: (713) 533-3800 Facsimile: (512)480-0902
Facsinrile:(713)533-3888 ATTORNEYS FOR WALLER COUNTY
ATTORNEYS FOR CITY OF HEMPSTEAD DEFENDANTS
By:~£,---
{/
V. Blayre Pena Brent Ryan
bpena@hslawmai~.com bryan@msmtx.com
Hance Scarborough McElroy, Sullivan, Miller,
400 W. 15th Street, Ste. 950 Weber & Olmstead, L.L.P.
Austin, Texas 78701 P.O. Box 12127
Phone:512-479-8888 Austin, Texas 78711
Fasci.mile: 512-482-6891 fax Phone: (512) 327-8111
Facsimile: (512)327-6566
Carol Chaney ATTORNEYS FOR PINTAIL LANDFILL, LLC
Carol.chaney@thechaneyfirm.net
Law Office of Carol A. Chaney
820 13th Street
P.O. Box966
Hempstead, TX 77445
Phone: (979) 826-6660
Fasci.mile: (979) 826-8989
ATTORNEYS FOR INTERVENORS/CITIZENS
AGAINST LANDFILL
By:fftkAJ &
f ( •
Agreed Joint Motion for Entry of Agreed Final Judgment Page 3
r11cu 1 v , • ·, ,
Kr 2 ;0 1 O'Clock p M
PATRICIA JAtvIES SPADACHENE
BYWALLEW1?' TEXAS
DEPUTY
CAUSE NO. 13-03-21872
CITY OF HEM:PSTEAD, Texas, § IN THE DISTRICT COURT OF •
Plaintiff §
§
And §
§
CITIZENS AGAINST THE LANDFILL IN §
HEMPSTEAD, §
Plaintiff Intervenor §
§
v. § WALLER COUNTY, TEXAS
§
WALLER COUNTY, TEXAS, COUNTY §
JUDGE BLENN BECKENDORFF, §
COMMISSIONER FRANK. POKLUDA, §
CO:MMlSSIONER STAN KITZMAN, §
COMMISSIONER JERON B.AlrnET, §
COMMISSIONER JOHN AMSLER, and § 506th JUDICIAL DISTRICT
PINTAIL LANDFILL, L.L.C. §
Defendants. §
CHAR.GE OF THE COURT
lv1EMBERS OF TIIB JURY:
After closing arguments, you will go to the jury room to decide the case, answer the
questions that are attached, and reach a verdict. You may discuss the case with other jurors only
when you are all together in the jury room.
1bis case is submitted to you by asking questions about the facts, which you must decide
from the evidence you have heard in this trial. You are the sole judges of the credibility of the
witnesses and the weight to be given their testimony, but in matters of law, you must be
governed by the ~ctions in this charge. In discharging your responsibility on this jury, you
will observe all the instructions which have previously been given you. I shill now give you
additional instructions which you should carefully and strictly follow during your deliberations.
Remember my previous instructions: Do not discuss the case with anyone else, either in
person or by any other means. Do not do any independent investigation about the case or
conduct any research. Do not look up any words in dictionaries or on the Internet. Do not post
information about the case on the Intern.et Do not share any special knowledge or experiences
with the other jurors. Do not use your phone or any other electronic device during your
deh'berati.ons for any reason, without permission from the Court. When you enter the jury room
to deliberate, you must surrender your phone and any other electronic device.
I
1 EXHIBIT
Any notes you have taken are for your own personal use. You may take your notes back
into the jury room and consult them dtu:ing deliberations, but do not show or read your notes to
your fellow jurors during your deh"berati.ons. Your notes are not evidence. Each of you should
rely on your independent recollection of the evidence and not be influenced by the fact that
another juror has or has not taken notes.
You must leave your notes with the bailiff when you are not deliberating. I will make
sure your notes are kept in a safe, secure location and not disclosed to anyone. After you
complete your deliberations, the bailiff will collect your notes, unless you choose to keep them.
When you are released from jury duty, the bailiff will promptly destroy your notes, unless you
have retained them, so that no one can read what you wrote.
Here are the instructions for answering the questions.
1. Do not let bias, prejudice or sympathy play any part in your decision.
2. Base your answers only on the evidence admitted in court and on the law that is in
these instructions and questions. Do not consider or discuss any evidence that was not admitted
in the courtroom.
3. You are to make up your own minds about the facts. You are the sole judges of
the credibility of the witnesses and the weight to give their testimony. But on matters of law,
you must follow all of my instructions.
4. If my instructions use a word in a way that is different from its ordinary meaning,
use the meaning I give you, which will be a proper legal definition.
5. All the questions and answers are important. No one should say that any question
or answer is not important
6. Answer ''yes" or "no" to all questions unless you are told otherwise. A ''yes"
answer must be based on a preponderance of the evidence. Whenever a question requires an
answer other than ''yes" or "no," your answer must be based on a preponderance of the evidence.
The term ''preponderance of the evidence" means the greater weight of credible evidence
presented in this case. If you do not find that a preponderance of the evidence supports a "yes"
answer, then answer "no." A preponderance of the evidence is not measured by the number of
witnesses or by the number of documents admitted in evidence. For a fact to be proved by a
preponderance of the evidence, you must find that the fact is more likely true than not true.
A fact may be established by direct evidence or by circumstantial evidence or both. A
fact is established by direct evidence when proved by documentary evidence or by witnesses
who saw the act done or heaxd the words spoken. A fact is established by circumstantial
evidence when it may be fairly and reasonably inferred from other facts proved.
2
7. Do not decide who you think should win before you answer the questions and
then just answer the questions to match your decision. Answer each question carefully without
considering who will win. Do not discuss or consider the effect your answers will have.
8. Do not answer questions by drawing straws or by any method of chance.
9. Do not trade your answers. For example, do not say, ''I will answer this question
your way if you answer another question my way."
10. The answers to the questions must be based on the decision of at least 10 of the 12
jurors. The same 10 jurors must agree on every answer. Do not agree to be bound by a vote of
anything less than 10 jurors, even if it would be a majority.
As I have said before, if you do not follow these instructions, it will be juror misconduct,
and I might have to order a new trial and start this process over again. This would waste your
time and the parties' money, and would require the taxpayers to pay for another trial. If a juror
breaks any of these rules, tell that person to stop, and if such juror fails to do so, report it to the
Court.
3
DEFINITIONS & INS1RUCTIONS
In answering the questions below, please follow these definitions and instructions.
1. The term "Waller County'' includes the Waller County Commissioners Court,
Judge Glenn Beckendorff and Waller County Commissioners Frank Pokluda, Stan Kitzman,
Jeron Barnett, ~d John Amsler.
2. Waller County is a governmental body.
3. All questions for tb.e Jury relate to the time period on or before February 13, 2013.
4
DEFINITIONS AND INSTRUCTIONS FOR QUESTION NUMBERS 1. 2, 3, AND 4
1. A governmental body may consult with its attorney in executive session to discuss
the legal issues raised in connection with a proposed contract or a proposed ordinance, but it may
not discuss non-legal matters.
a. ''Non-legal matters" include but are not limited to: (1) merits of enacting
an ordinance; (2) merits of a proposed contract; (3) :financial
considerations of a proposed con.tract; or (4) matters of public policy; or
(5) merits of an application.
b. Legal issues include advice given to Waller County regarding the legal
ramifications of facts and information and the legality of a proposed
contract or proposed ordinance.
2. "Deliberation" means a verbal exchange during a meeting between a quorum of a
governmental body, or between a quorum of a governmental body and another person,
co~cerning an issue within the jurisdiction of the governmental body or any public business.
3. "Meeting'' means;
a A deliberation between a quorum of a governmental body or between a
quorum of a governmental body and another person, during which public
business or public policy over which the governmental body has
supervision or control is discussed or considered or during which the
governmental body takes formal action, or
b. A gathering:
i. That is conducted by the governmental body;
ii. At which a quorum of members of the governmental body is
present;
iii. That has been called by the governmental body, and;
iv. At which the members receive information from, give information
to, ask questions of, or receive questions from any third person,
including an employee of the governmental body, about the public
business or public policy over which the governmental body has
supervision or control.
4. "Closed Meeting'' means a meeting to which the public does not have access.
5. "Quorum" means a majority of a governmental body.
6. A "walking quorum.1' occurs when members of a governmental body gather in
numbers that do not physically constitute a quorum at any one time but who,
through successive gatherings, secretly, and intentionally, discuss a public matter
with a quorum of that body at a place other than1 a posted meeting.1
5
QUESTION NUMBER 1
Do you find that the WaJler County Commissioner's Court deliberated non-legal matters
relating to Ordinance 2013-001 in a closed meeting?
Answer: ---'``,e_5
___ ("Yes" or "No")
6
QUESTION NUMBER 2
Do you find that the Waller County Commissioner's Court deliberated non-legal matters
relating to the Host Agreement in a closed meeting?
Answer: l{ -e)
~-
("Yes" or "No")
7
., \ ~ .. ..
QUESTION NUMBER 3
Do you find that at least three (3) members of the Waller County Commissioners Court
eng~ed in a walking quorum related to the following items below?
(a) Host Agreement
(b) Ordinance 2013-001
8
QUESTION NUMBER 4
"Negotiate" means to try to reach an agreement or compromise by discussion with others.
Do you find that one or more members of the Waller County Gommissioners Court acted
as a committee, authorized by at least three (3) members of the Commissioners Court, to
negotiate the tenns of the following items before presentation to the Waller County
Commissioners Court for a vote?
Answer ''"'ies" or ''No" for each of the following.
(a) Host Agreement Answer: --j-+---eS=--___ (''Yes" or ''No")
(b) Ordinance 2013-001 Answer: Cf e'\
--=o=---::7---- (''Yes" or "No")
I
9
.,
If you answered "yes" to Question Number 4(a) or 4(b), answer Question Number/ 5,
otherwise, do not answer Question Number 5. ·
,
QUESTION NUMBER 5
Do you find that there were any committee meetings held that were not open to the public
relating to the following?
(a) Host Agreement Answer: -~"'+-'6;;.....<,.___ ("Yes" or ''No")
(b) Ordinance 2013-001 Answer: _~-+--=e'-S.___ (''Yes" or ''No")
10
If you answered "yes" to Question Number 4(a) or 4(b), answer Question Number 6,
otherwise, do not answer Question Number 6 and proceed to Question Number 7.
INSTRUCTION FOR QUESTION NUMBER 6
A "rubber stamp" occurs when a committee's recommendations are approved without
meaningful discussion.
QUESTION NUMBER 6
Do you find that the Commissioners' vote at the Febl').lary 13, 2013 open meeting was a
rubber stamp of the following items?
(~) llost.A.greement Answer: -B~f-...,$,,...____ ("Yes" or ''No")
(b) Ordinance 2013-001 Answer: -~-+-e_<;_.__ ___ (''Yes" or ''No")
d
11
INSTRUCTION FOR Q~TIONNUMBERS 7 THROUGH 9
Public information means information that is written, produced., collected., assembled, or
maintained under a law or ordinance or in connection with the transaction of official business.
Public Information includes all documents, regardless of physical form or characteristics, created
or received by Waller County in the transaction of public business. Public information includes,
but is not limited to, e-mails, text messages, and other electronic recordings.
Waller County is required to preserve and manage its Public Information in accordance
with applicable rules and laws governing the destruction and other disposition of state and local
government records or Public Information.
Each Waller County Commissioner and the Waller County Judge is the officer for public
information and the custodian of the information created or. received by that county
commissioners' office. Waller County or the elected county officer for information of that
elective county office may determine a time for which information that is not currently in Use
will be preserved, subject to any applicable rule or law governing the destruction and other
disposition of state and local government records or public information.
As an officer for public information, each Waller County Commissioner or Coun.ty
Judge is responsible for the release of public information. Each is required to: (1) make public
information available for public inspection and copying; (2) carefully protect public information
from deterioration, alteration, mutilation, loss, or unlawful removal; and (3) repair, renovate, or
rebind public information as necessary to maintain it properly.
Each officer for public information is required to prominently display a sign containing
basic information about the rights of a requestor, the responsibilities of a governmental body, and
the procedures for inspecting or obtaining a copy of public information.. The officer shall display
the sign at one or more places in the administrative offices of the governmental body where it is
plainly visible to members of the public and employees of the governmental body whose duties
include receiving or responding to requests under this chapter.
As officers for public information, Waller County Commissioners and the Waller County
Judge must promptly produce public information for inspection, duplication, or both upon
request by any person for public information. "Promptly" means as soon as possible under the
circumstances, that is, within a reasonable time, without delay. If an officer for public
information cannot produce public inforination for inspection or duplication within 1Obusiness
days after the date the information is requested, the officer must certify that fact in writing to the
requestor and set a date and hour within a reasonable time when the information will be available .
for inspection or duplication.
I
12
QUESTION NUMBER 7
Do you :find that County Judge Glenn Beckendorff failed to comply with any of the
following?
(a) Protecting public information from deterioration, alteration, mutilation, loss, or
unlawful removal;
(b) Displaying a sign containing basic information about the rights of a requestor, the
responsibilities of a governmental bo,dy, and the procedures for inspecting or
ob:taining a copy of public information at one or more places in the admIDistrative
offices of the governmental body where it is plainly visible to members of the public
and employees of the governmental body;
(c) Promptly producing public information for inspection, duplication, or both upon
request by any person for public information;
(d) Certifying in writing to the requester within 10 business days after the date the
information was requested, that public information requested could not be produced
for inspection or duplication;
(e) Notifying the requestor within 10 business days after the request of a date and hour
within a reasonable time when the information would be available for inspection or
duplication to the requestor.
Answer: 8"5 ("Yes" or "No")
I
13
QUESTION NUMBER 8
Do you find that Waller County Precinct Two Commissioner Frank Pokluda failed to
comply with any of the following?
(a) Protecting public information from deterioration, alteration, mutilation, ~ass, or
unlawful removal;
(b) Displaying a sign contalning basic information about the rights of a requestor, the
responsibilities of a governmental body, and the procedures for inspecting or
obtaining a copy of public information at one or more places in the administrative
offices of the governmental body where it is plainly visiple to members of the public
and employees of the governmental body;
(c) Promptly producing public information for inspection, duplication, or both upon
request by any person for public information;
(d) Certifying in writing to the requestor withln 10 business days after the date the
information was requested, that public information requested could not be produced
for inspection or duplication;
(e) Notifying the requestor within 10 business days after the request of a date and hour
within a reasonable time when the information would be available for inspection or
duplication to the requestor.
Answer: -~--+.e-=_,,,,_~_ _ _ ("Yes" or ''No")
14
QUESTION NUMBER 9
Do you find that Waller County Precinct Four Commissioner Stan Kitzman failed to comply with
any of the following?
(a) Protecting public information from deterioration, alteration, mutilation, loss, or
unlawful removal;
(b) Displaying a sign containing basic information about the rights of a requester, the
responsibilities of a governmental body, and the procedures for inspecting or
obtaining a copy of public information at one or more places in the administrative
offices of the governmental body where it is plainly visible to members of the public
and employees of the governmental body;
(c) Promptly producing public information for inspection, duplication, or both upon
request by any person for public information;
(d) Certifying in writing to the requestor within 10 business days after the date the
information was requested, that public information requested could not be produced
for inspection or duplication;
(e) Notifying the requestor within 10 business days after the request of a date and hour
within a reasonable time when the information would be available for inspection or
duplication to the requester.
Answer: -~--,i---e~s___ ("Yes" or "No")
15
After you retire to the jury room, you will select your own presiding juror. The first thing
the presiding juror will do is to have this complete charge read aloud and then you will deliberate
upon your answers to the questions asked.
It is the duty of the presiding juror-
1. to preside during your deliberations,
2. to see that your deliberations are conducted in an orderly manner and in
accordance with the instructions in this charge,
3. to write out and hand to the bailiff any communications concerning the
case that you desire to have delivered to the judge,
4. to vote on the questions,
5. to write your answers to the questions in the spaces provided, and
6. to certify to your verdict in the space provided for the presiding juror's
signature or to obtain the signatures of all the jurors who agree with the
verdict if your verdict is less than lmanimous.
You should not discuss the case with anyone, not even with other members of the jury,
unless all of you are present and assembled in the jury room. Should anyone attempt to talk to
you about the case before the verdict is returned., whether at the courthouse, at your home, or
elsewhere, please inform the judge of this fact.
If you have a question, you must submit such question in writing to the Court. The
Presiding Juror must write out the question, sign same and hand the note to the Bailiff, who will
present it to the Court. Do not discuss .the question with the Bailiff.
When you have answered all the questions you are required to answer under the
instructions of the judge and your presiding juror has placed your answers in the spaces provided
and signed the verdict as presiding juror or obtained the signatures, you will inform the bailiff at
the door of the jury room that you have reached a verdict, and then you will return. into co
with your verdict.
16
Certificate
.
r
.
We, the jury, have answered the above and foregoing questions as herein indicated, and
herewith return same into court as our verdict. J [._,,
l/eflltl.-'1
71
/I
(To be signed by the presiding juror if th~is unanimous.)
PRESIDING JUROR
Printed Name of Presiding .Jur~ ~
1111f c,t" t~ tit u
(To be signed by those rendering the verdict if the}Y1-Yis not lmanimous.)
Jurors' Printed Names
I
(' lr...mes 't, 5---r:5"r µ ,u..e"tc,
/{/I Cf-f 4-E \ t\ - l~ fH:J N0 /'/
J?,~ ``~
<"I _ __,, t- I -
\::)(1.0 ( ( ht l'9. I \P,,f./'-;t: If.-. (Jr.
Ko~er-t_ ld n.e.r-r-1.c. k
3 L4J ·~ L/ri .t-5
17
Cause No. 13-03-21872
CITY OF HEMPSTEAD, TEXAS § IN THE DISTRICT COURT OF
Plaintiff, §
§
and §
§
CITIZENS AGAINST THE LANDFILL § WALLER COUNTY, TEXAS
IN HEMPSTEAD §
§
v. §
§
WALLER COUNTY, TEXAS, ET. AL. §
Defendants. · § 506TH JUDICIAL DISTRICT
AGREED FINAL JUDGMENT
Before the Court is the above-styled and numbered cause of action. On December 1,
2014, the case was called for trial. Plaintiff City of Hempstead ("Hempstead") appeared through
its attorney of record and announced ready for trial. Plaintiff-Intervenor Citizens Against the
Landfill in Hempstead ("CALH") appeared through its attorney of record and announced ready
for trial. Defendants, Waller County, Texas including the elected officials of the Waller County
Commissioners Court, in their official capacities (collectively "Waller County"), appeared in
person and by their attorney of record and announced not ready for trial. Defendant, Pintail
Landfill, LLC, ("Pintail") appeared in person and by its attorney of record and announced not
ready for trial. After denying the Motions to Abate and Requests for Continuance, a jury,
consisting of 12 qualified jurors having been previously demanded, was duly empanelled and the
case proceeded to trial.
EXHIBIT
B
Agreed Final Judgment Page 1
The Court, after examining the record and the evidence and argument of counsel, finds
that venue is proper in Waller County, that the Court has jurisdiction over the subject matter and
the parties in this case, and that the Court has jurisdiction to enter a judgment in this case.
At the conclusion of the evidence, the Court submitted the questions of fact in the case to
the jury. The charge of the Court and the verdict of the jury are incorporated for all purposes by
reference, and attached hereto as Exhibit 1. The Parties also entered into certain Stipulations of
Fact, which are incorporated for all purposed by reference, and attached hereto as Exhibit 2.
Following the verdict of the jury of December 18, 2014, Hempstead, CALH, Pintail
Landfill and Waller County filed a Joint Motion for Entry of Agreed Final Judgment. In said
Motion, the parties represent that they have reached a settlement agreement concerning the jury
verdict and the remaining legal and factual issues pending before the Court and have agreed to
the entry of final judgment.
Accordingly, the Court renders the following Agreed Final Judgment:
IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that Waller County
Ordinance No. 2013-001 is void.
IT IS FURTHER ORDERED that the Host Agreement between Waller County, Texas,
and Pintail Landfill, LLC is void.
IT IS FURTHER ORDERED that Plaintiff City of Hempstead have and recover from
Waller County attorneys' fees in the amount of Two Hundred Forty-Five Thousand Dollars and
no cents ($245,000).
IT IS FURTHER ORDERED that Plaintiff-Intervenor Citizens Against the Landfill in
Hempstead have and recover from Waller County attorneys' fees in the amount of Three
Hundred Twenty-Five Thousand Dollars and no cents ($325,000).
I
Agreed Final Judgment Page 2
IT IS FURTHER ORDERED that the total amount of the judgment rendered will bear
interest at a rate of Five Percent (5%) per annum from the date of this judgment until paid in full.
Pursuant to the terms of the parties' settlement agreement giving rise to this Agreed Final
Judgment, the parties do not present to this Court for adjudication, and this Court does not adjudicate,
any issue concerning any claim, defense, or assertion, whether one or more, that has been or may in
the future be raised in any forum, regarding the validity of Waller County Ordinance No. 2011-001
and/or its applicability to (a) Texas Commission on Environmental Quality MSW Registration No.
40259 (Pintail Landfill Transfer Station), (b) Texas Commission on Environmental Quality MSW
Permit Application No. 2377 (Pintail Landfill), and/or (c) all or any part of the 410.37 acre facility
site described in such Registration and Permit Application.
All costs of court spent or incurred in this cause are to be borne by the party incurring
same. All writs and processes for the enforcement and collection of this judgment may issue as
necessary.
All other relief requested in the live pleadings of any party that is not specifically granted
is DENIED. This is a final judgment that disposes of all claims and parties.
SIGNED this _ _ day of _ _ _ _ _ _ _ _,. 2015.
TERRY L. FLENNIKEN, JUDGE PRESIDING
Agreed Final Judgment Page 3
AGREED AS TO FORM AND SUBSTANCE:
Art Pertile
Corey R. Ouslander James P. Allison
couslander@olsonllp.com J. Eric Magee
OLSON & OLSON, L.L.P. e.magee@allison-bass.com
Wortham Tower, Ste. 600 Allison, Bass & Associates, LLP
2727 Allen Parkway 402 W. 12th St.
Houston, Texas 77019 Austin, Texas 78701
Phone: (713) 533-3800 Phone: (512) 482-0701
Facsimile: (713)533-3 888 Facsimile: (512)480-0902
ATTORNEYS FOR CITY OF HEMPSTEAD ATTORNEYS FOR WALLER COUNTY
DEFENDANTS
By:_ _ _ _ _ _ _ _ _ __
By:_ _ _ _ _ _ _ _ _ __
V. Blayre Pena Brent Ryan
bpena@hslawmail.com bryan@msmtx.com
Hance Scarborough McElroy, Sullivan, Miller,
400 W. 15th Street, Ste. 950 Weber & Olmstead, L.L.P.
Austin, Texas 78701 P.O. Box 12127
Phone:512-479-8888 Austin, Texas 78711
Fascimile: 512-482-6891 fax Phone: (512) 327-8111
Facsimile: (512)327-6566
Carol Chaney ATTORNEYS FOR PINTAIL LANDFILL, LLC
Carol.chaney@thechaneyfirm.net
Law Office of Carol A. Chaney
820 13th Street
P.0.Box966
Hempstead, TX 77445
Phone: (979) 826-6660
Fascimile: (979) 826-8989
ATTORNEYS FOR INTERVENORS/CITIZENS
AGAINST LANDFILL
By: By:
----------- -----------
Agreed Final Judgment Page4
rui:::u '" r .. • , ,
AT 2 ; 0 1 O'Clock f M
PATRICIA JAMES SPADACHENE
BYWALL~ TEXAS
DEPUTY
CAUSE NO. 13-03-21872
CITY OF HEMPSTEAD, Texas, § IN THE DISTRICT COURT OF ,
Plaintiff §
§
And §
§
CITIZENS AGAINST THE LANDFILL IN §
HEMPSIBAD, §
Plaintiff Intervenor §
§
v. § WALLER COUNTY, TEXAS
§
WALLER COUNTY, TEXAS, COUNTY §
JUDGE BLENN BECKENDORFF, §
CO:MMISSIONERFRANK POKLUDA, §
COM1\11SSIONER STAN KITZMAN, §
COMMISSIONER JERON BARNET, §
COMMJSSIONER JOHN AMSLER, and § 506th JUDICIAL DISTRICT
PINTAIL LANDFILL, L.L.C. §
Defendants. §
CHARGE OF THE COURT
MElv.IBERS OF THE JURY:
After closing arguments, you will go to the jury room to decide the case, answer the
questions that are ai."tached, and reach a verdict. You may discuss the case with other jurors only
when you are all together in the jury room.
This case is submitted to you by asking questions about the facts, which you must decide
from the evidence you have heard in this trial. You are the sole judges of the credibility of the
witnesses and the weight to be given their testimony, but in matters of law, you must be
governed by the in.$ictions in this charge. In discharging your responsibility on this jury, you
will observe all the instructions which have previously been given you. I sh0ll now give you
additional instructions which you should carefully and strictly follow during your deliberations.
Remember my previous instructions: Do not discuss the case with anyone else, either in
person or by any other means. Do not do any independent investigation about the case or
conduct any research. Do not look up any words in dictionaries or on the Internet. Do not post
info~tion about the case on the Internet. Do not share any special knowledge or experiences
with the other jurors. Do not use your phone or any other electronic device during your
deliberations for any reason, without pennission from the Court. When you enter the jury room
to deliberate, you must surrender your phone and any other electronic device.
1 EXHIB!T
I
·-· ·-. .. . ·- ~ · · . .. . • ' ••• .. .. . L
···:...... :... . ·-·--·-· ..
A:rly notes you have taken are for your own personal use. You may take your notes back
into the jury room and consult th.em during deliberations, but do not show or read your notes to
your fellow jurors during your deliberations. Your notes are not evidence. Each of you should
rely on yom independent recollection of the evidence and not be influenced by the fact that
another jmor has or has not taken notes.
You must leave your notes with the bailiff when you are not deliberating. I will make
sure your notes are kept in a safe, secme location and not disclosed to anyone. After you
complete yam deliberations, the bailiff will collect your notes, unless you choose to keep them.
When you are released from jury duty, the bailiff will promptly destroy your notes, unless you
have retained them, so that no one can read what you wrote.
Here are the instructions for answering the questions.
1. Do not let bias, prejudice or sympathy play any part in your decision.
2. .Base your answers only on the evidence admitted in court and on the law that is in
these instructions and questions. Do not consider or discuss any evidence that was not admitted
in the courtroom.
3. You are to make up yom own minds about the facts. You are the sole judges of
the credibility of the witnesses and the weight to give their testimony. But on matters of law,
you must follow all of my instructions.
4. If my instructions use a word in a way that is different from its ordinary meaning,
use the meaning I give you, which will be a proper legal definition.
5. All the questions and answers are important. No one should say that any question
or answer is not important
6. Answer "yes" or "no" to all questions unless you are told othenvise. A "yes"
answer must be based on a preponderance of the evidence. Whenever a question requires an
answer other than ''yes" or "no," your answer must be based on a preponderance of the evidence.
The term ''preponderance of the evidence" means the greater weight of credible evidence
presented in this case. If you do not find that a preponderance of the evidence supports a ''yes"
answer, then answer "no." A preponderance of the evidence is not measured by the number of
witnesses or by the number of documents admitted in evidence. For a fact to be proved by a
preponderance of the evidence, you must find that the fact is more likely true than not true.
A fact may be established by direct evidence or by circumstantial evidence or both. A
fact is established by direct evidence when proved by documentary evidence or by witnesses
who saw the ·act done or heard the words spoken. A fact is established by circumstantial
evidence when it may be fairly and reasonably inferred from other facts proved.
2
'I ...... ..
.,
7. Do not decide who you think should win before you answer the questions and
then just answer the questions to match your decision. Answer each question carefully without
considering who will win. Do not discuss or consider the effect your answers will have.
8. Do not answer questions by drawing straws or by any method of chance.
9. Do not trade your answers. For example, do not say, "I will answer this question
your way if you answer another question my way."
10. The answers to the questions must be based on the decision of at least 10 of the 12
jurors. The same 10 jurors must agree on every answer. Do not agree to be bound by a vote of
anything less than 1Ojurors, even if it would be a majority.
As I have said before, if you do not follow these instructions, it will be juror miscori.duct,
and I might have to order a new trial and start thls process over again. This would waste your
time and the parties' money, and would require the taxpayers to pay for another trial. If a juror
breaks any of these rules, tell that person to stop, and if such juror fails to do so, report it to the
Court.
I
3
0 H '" ' " .. :''\ •• • • • o • • ••• '" " '- 1 ' ' '" " 1 .... .. .......... ... ...
DEFINITIONS & INSTRUCTIONS
In answering the questions below; please follow these <;lefinitions and instructions.
1. The term "Waller County" includes the Waller County Commissioners Court,
Judge Glenn Beckendorff and Waller County Commissioners Frank Pokluda, Stan Kitzman,
Jeron Bame~ and John Amsler.
2. Waller County is a governmental body.
3. All questions for the Jury relate to the time period on or before February 13, 2013.
4
.. ·. - . •.. . ·.· ··1 · ·-·· ·· ·· ·· · •. -:-::-·;1 ·· ·· ' "! ·-··· ·· ·· ···1
DEFINITIONS AND INSTRUCTIONS FOR QUESTION NUMBERS 1, 2, 3, AND 4
1. A governmental body may consult with. its attorney in executive session to discuss
the legal issues raised in connection with a proposed contract or a proposed ordinance, but it may
not discuss non-legal matters.
a. ''Non-legal matters" include but are not limited to: (1) merits of enacting
an ordinance; (2) merits of a proposed contract; (3) financial
considerations of a proposed cmrtract; or (4) matters of public policy; or
(5) merits of an application.
b. Legal issues include advice given to Waller County regarding the legal
ramifications of facts and information and the legality of a proposed
contract or proposed orclinance.
2. "Deliberation" means a verbal exchange during a meeting between a quorum of a
governmental body, or between a quorum of a governmental body and another person,
co~ceming an issue within the jurisdiction of the governmental body or any public business.
3. "Meeting" means?
a. A deliberation between a quorum of a governmental body or between a
quorum of a governmental body and another person, during which public
business or public policy over which the governmental body has
supervision or control is discussed or considered or during which the
governmental body takes formal action, or
b. A gathering:
i That is conducted by the governmental body;
ii. At which a quorum of members of the governmental body is
present;
ill. That has been called by the governmental body, and;
iv. At which the members receive information from, give information
to, ask questions of: or receive questions from any third person,
inclucling an employee of the governmental body, about the public
business or public policy over which the governmental body has
supervision or control.
4. "Closed Meeting" means a meeting to which the public does not have access.
5. "Quorum" means a majority of a governmental body.
6. A ''walking quorum" occurs when members of a governmental body gather in
numbers that do not physically constitute a quorum at any one time but who,
through successive gatherings, secretly, and intentionally, discuss a public matter
with a quorum of that body at a place other than a posted meeting.
.i
5
II
QUESTION NUMBER 1
Do you find that the Waller County Commissioner's Court deliberated non-legal matters
relating to Ordinance 2013-001 in a closed meeting?
Answer: -""'~""'''-e_S_ _ ("Yes" or "No")
!·
I
6
• ••• • • •• • •• ..• .•• • • • • • • • • • · ·- ··· •• • •t .... .. ....... ........,
QUESTION NUMBER2
Do you find that the Waller County Commissioner's Court deliberated non-legal matters
relating to the Host Agreement in a closed meeting?
(''Yes" or ''No")
7
··- · • . . • . . .. -···1 ...... .... .. ., ···---- -··---·-· ····-·-.
!
i.
'
QUESTION NUMBER 3
Do you find that at least three (3) members of the Waller County Commissioners Court
en~ed in a walking qu~rum related to the following items below?
(a) Host Agreement .Answer: _.,..........,_f__S,
_____ ("Yes" or "No")
(b) Ordinance 2013-901
8
·~·- . ...... : ........ • •• •· ·- ) " • • • •· •-• • • ·-- • · ·• I .....,
QUESTION NUMBER 4
"Negotiate" means to try to reach an agreement or compromise by discussion with others.
Do you find that one or more members of the Waller County Gommissioners Court acted
as a committee, authorized by at.least three (3) members of the Commissioners Court, to
negotiate the terms of the following items before presentation to the Waller County
Commissioners Court far a vote?
Answer '~es" or "No" for each of the following.
(a) Host Agreement Answer: __,.j-+-e_S____ ('~es" or "No'')
(b) Ordinance 2013-001 Answer: -~....,_e_5___ ('~es" or "No")
9
. . . ... .., .............. , ··.-.··--··- .. .. ._ . , , ........ .................. ......
. 11!/
If you answered "yes" to Question Number 4(a) or 4(b), answer Question Number/ 5,
otherwise, do not answer Question Number 5.
QUESTION NUMBER 5
Do you find that there were any committee meetings held that were not open to the public
relating to the following?
(a) Host Agreement Answer: __,~--..;5;....,..<..._ _ _ ("Yes" or "No")
(b) Ordinance 2013-001 Answer: -~--\i=
.e,....S___ ("Yes" or ''No")
I I
10
.. ··.· ·.·.·: . ... .. ,.. ···-.. ······-··- ·1- "• .....- ... ·-· ... . ·· -·.:•.......... ._... .... .,
If you answered "yes" to Question Number 4(a) or 4(b), answer Question Number 6,
otherwise, do not answer Question Number 6 and proceed to Question Number 7.
INSlRUCTION FOR QUESTION NUMBER 6
A "rubber stamp,, occurs when a committee's recommendations are approved without
meaningful discussion.
QUESTION NUMBER 6
Do you find that the Commissioners' vote at the Febniary 13, 2013 open meeting was a
rubber stamp of the following items?
(~) :S:ost.A.greement Answer: --=B~f.,..5~--- ("Yes" or "No")
(b) Ordinance 2013-001 Answer: -``e_5_._____ ("Yes" or ''No")
d
11
• .a..:.:.,\• . · •••• •• ~ : •• , . . ··~··.:•:;.,·.`` • .:-.: • ...::.'"!~. · · ·· - · . ..
•. .::: ··· ·- ····--· ' "·j
INSTRUCTION FOR QUESTION NUMBERS 7 THROUGH 9
Public information means information that is written, produced, collected, assembled, or
maintained under a law or ordinance or in connection with the transaction of official business.
Public Information includes all documents, regardless of physical form or characteristics, created
or received by Waller County in the transaction of public business. Public information includes,
but is not limited to, e-mails, text messages, and other electronic recordings.
Waller County is required to preserve and manage its Public Information in accordance
with applicable rules and laws governing the destruction and other disposition of state and local
government records or Public Information.
Each Waller County Commissioner and the Waller County Judge is the officer for public
infonnation and the custodian of the information created or·. received by that county
commissioners' office. Waller County or the elected county officer for information of that
elective county office may determine a time for which information that is not currently in Use
will be preserved, subject to any applicable rule or law governing the destruction and other
disposition of state and local government records or public information.
AB an officer for public information, each Waller County Commissioner or County
Judge is responsible for the release of public information. Each is required to: (1) make public
informa;tion available for public inspection and copying; (2) carefully protect public information
from deterioration, alteration, mutilation, loss, or unlawful removal; and (3) repair, renovate, or
rebind public information as necessary to maintain it properly.
Each officer for public information is required to prominently display a sign containing
basic infonna.tion about the rights of a requestor, the responsibilities of a governmental body, and
the procedures for inspecting or obtaining a copy of public infonnation. The officer shall display
the sign at one or more places in the administrative offices of the governmental body where it is
plainly visible to members of the public and employees of the governmental body whose duties
include receiving or responding to requests under this chapter.
AB officers for public information, Waller County Commissioners and the Waller County
Judge must promptly produce public information for inspection, duplication, or both upon
request by any person for public information: ''Promptly" means as soon as possible under the
circumstances, that is, within a reasonable time, without delay. If an officer for public
information cannot produce public information for inspection or duplication within 10 business
days after the date the information is requested, the officer must certify that fact in writing to the
requestor and set a date and hour within a reasonable time when the information will be available .
for inspection or duplication.
12
- ... '······-·· ··· ·-··.·· ···· .... ...... ·······-··· .... , ·· ····~-- - . ·--:·- ·- ...... ...
QUESTION NUMBER 7
Do you :find that County Judge Glenn Beckendorff failed to comply with any of the
following?
(a) Protecting public information from deterioration, alteration, mutilation, loss, or
unlawful removal;
(b) Displaying a sign contammg basic information about the rights of a requestor, the
responsibilities of a governmental bo.dy, and the procedures for inspecting or
ob:taining a copy of public information at one or more places in the administrative
offices of the governmental body where it is plainly visible to members of the public
and employees of the governmental body;
(c) Promptly producing public information for inspection, duplication., or both upon
request by any person for public information;
(d) Certifying in writing to the requester within 10 business days after the date the
information was requested, that public :information requested could not be produced
for inspection or duplication;
(e) Notifying the requestor within 10 business days after the request of a date and hour
within a reasonable time when the information would be available for inspection or
duplication to the requester.
("Yes" or "No")
13
.. .... ·- .. · ····· · ·- · · ··- ·· - : · •:9·- .. ·-·--·· · "·•··- . . . . .. •.. . . . ..
'
QUESTION NUMBER 8
Do you find that Waller County Precinct Two Commissioner Frank Pokluda failed to
comply with any of the following?
(a) Protecting public information from deterioration, alteration, mutilation, ~oss, or
unlawful removal;
(b) Displaying a sign containing basic information about the rights of a requestor, the
responsibilities of a governmental body, and the proc~dures . for inspecting or
obtaining a copy of public information at one or more places in the administrative
offices of the governmental body where it is plainly visi\:>le to members of the public
and employees of the governmental body;
(c) Promptly producing public information for inspection, duplication, or both upon
request by any person for public infonnation;
(d) Certifying in writing to the requester within 10 business days after the date the
information was requested, that publi~ information requested could not be produced
for inspection or duplication;
(e) Notifying the requester within 10 business days after the request of a date and hour
within a reasonable time when the information would be available for inspection or
duplication to the requestor.
Answer:-``.(!-=-_....,.)_ _ _ ("Yes" or "No")
14
QlJESTION NUMBER 9
Do you find that Waller County Precinct Four Commissioner Stan Kitzman failed to comply with
any of the following?
(a) Protecting public information from deterioration, alteration, mutilation, loss, or
unlawful removal;
(b) Displaying a sign containing basic information about the rights of a requester, the
responsibilities of a governmental body, and the procedures for inspecting or
obtaining a copy of public information at one or more places in the administrative
offices of the governmental body where it is plainly visible to members of the public
and employees of the governmental body;
(c) Promptly producing public information for inspection, duplication, or both upon
request by any person for public information;
(d) Certifying in writing to the requester withln 10 business days after the date the
information was requested., that public information requested could not be produced
for inspection or duplication;
(e) Notifying the requester withln 10 business days after the request of a date and hour
within a reasonable time when the infonnation would be available for inspection or
duplication to the requester.
Answer: -g--+-"-e__)___ ("Yes" or ''No")
15
•• • •• .. ... ... ••• ••-•4•••,..r• H •---- . . . . . ,, . .,. •• •" • 1 •
··· ·· ··· -I
i
·iI
'
After you retire to the jury room, you will select your own presiding juror. The first thing
the presiding juror will do is to have this complete charge read aloud and then you will deliberate
upon your answers to the questions asked.
It is the duty of the presiding juror-
1. to preside during your deliberations,
2. to see that your deliberations are conducted in an orderly manner and in
accordance with the instructions in this charge,
3. to write out and hand to the bailiff any communications concerning the
case that you desire to have delivered to the judge,
4. to vote on the questions,
5. to write your answers to the questions in the spaces provided, and
6. to certify to your verdict in the space provided for the presiding juror's
signature or to obtain the signatures of all the jurors who agree with the
verdict if your verdict is less than unanimous.
You should not discuss the case with anyone, not even with other members of the jury,
unless all of you are present and assembled in the jury room. Should anyone attempt to talk to
you about the case before the verdict is returned, whether at the courthouse, at your home, or
elsewhere, please inform the judge of this fact.
If you have a question, you must submit such question in writing to the Court The
Presiding Juror must write out the question, sign same and hand the note to the Bailiff, who will
present it to the Court. Do not discuss _the question with the Bailiff.
When you have answered all the questions you are required to answer under the
instructions of the judge and your presiding juror has placed your answers in the spaces provided
and signed the verdict as presiding juror or obtained the signatures, you will inform the bailiff at
the door of the jury room that you have reached a verdict, and then you will return into co
with your verdict
16
· - - - · • .&. •f • ',1.•.a· • ·.·,." ... '- - " · ·-· · - - - - - · ·:.··:-:::-: :'. r..·.":'.· .;;.m.-• • •.·• •• • • • - ::•.- ':.!."-!"- - -·.1 -
Certificate
.
r
.
We, the jury, have answered the above and foregoing questions as herein indicated, and
herewith return same m.to court as our verdict. ~ Verd 10 r/I
(To be signed by the presiding jmor if th;.ilJef'lS unanimous.)
PRESIDJNG JUROR
Printed Name of Presiding Jur~ ~
II l fJ1c,.f" 1n U
(To be signed by those rendering the verdict if theJ.Y1Yis not unanimous.)
Jurors' Printed Names
I
ClA_ru-{es b , 5---a::r µ ,u_-eG6
//)1crtftt. \ fA - l~ AN No/'/
=e,~ ``:
I
I .
17
CAUSE NO. 13-03-21872
CITY OF HEMPSTEAD, Texas, § Il'1' THE DISTPJCT COURT OF
Plaintiff §
§
And §
§
CITIZENS AGAINST THE LANDFILL IN §
HEMPS1EAD, §
Plaintiff Intervenor §
§
v. § WALLER COUNTY, TFx.AS
§
WALLER COUNTY, TEXAS, COUNTY §
JUDGE BLENN BECKENDORFF, §
COMMISSIONER FRANK POKLUDA, §
COMMISSIONER STAN KITZMAN, §
COMMISSIONERJERON B.ARNET, §
COMMISSIONER JOHN .AMSLER, and § 5061Q JUDICIAL DISTRICT
PINTAIL LANDFILL, L.L.C. §
Defendatrt.S. §
AGREED STIP'ULATIONS OF FACT
COi'.IBS NOW Pl2!in.ti.ff City of Hempstead, Plaintiff Interv-enoi Citizens Against
the Landfill in Hempstead, and Defendants Waller Count"f, Texas, County Judge Glenn
Eeckendorff, Commissioner Frank Pokluda, Commissioner Stan Kitzman, Commissioner
Jeron Barnett, Commissionei John Amsl.er, and Pintail Landfil~ LLC and presents these
Agreed Stipulations of Fact to the Court. The Pa..-ties agree that the exi!tu:nce of such
stipulations sbaBl not be published 1o the Jwy or mentioned in argument before the jury.
I. Agreed StipuD:atfom .gf Fad R.egalrdmg CoEi!drad E:::ceplii•&lll t@ Open Meefuigs
Ad, TelaS GonrnDilile:nt O!i!de § 551.0725.
Waller County Commissioners Court did not invoke Texas Government Code
§ 551.0725 (relating to Deliberation Regarding Contract Being Negotiated) to enter
executive session or closed meeting on Februa.--y 13, 2013, January 2, 2013, or December
;J - `` :V. /;2,/7,) M
PATRICIA JAMES SPADACHENE
BYWALLEW1?' TEXAS
DEPUTY
CAUSE NO. 13-03-21872
CITY OF HEMPSTEAD, Texas, § IN THE DISTRJCT COURT OF '
Plaintiff §
§
And §
§
CITIZENS AGAINST THE LANDFILL IN §
HEMPSTEAD, §
Plaintiff Intervenor §
§
v. § WALLER COUNTY, TEXAS
§
WALLER COUNTY, TEXAS, COUNTY §
JUDGE BLENN BECKENDORFF, §
COMMISSIONER FRANK POKLUDA, §
COMMISSIONER STAN KITZMAN, §
COMMISSIONER JERON BARNET, §
COMMISSIONER JOHN AMSLER, and § 506th TIJDICIAL DISTRJCT
PINTAIL LANDFILL, L.L.C. §
Defendants. §
CHARGE OF THE COURT
JY.IEMBERS OF THE JURY:
After closing arguments, you will go to the jury room to decide the case, answer the
questions that are attached, and reach a verdict. You may discuss the case with other jurors only
when you are all together in the jury room.
This case is submitted to you by asking questions about the facts, which you must decide
from the evidence you have heard in this trial. You are the sole judges of the credibility of the
witnesses and the weight to be given their testimony, but in matters of law, you must be
governed by the ~ctions in this charge. In discharging your responsibility on this jury, you
will observe all the instructions which have previously been given you. I shan now give you
additional instructions which you should carefully and strictly follow during your deliberations.
Remember my previous instructions: Do not discuss the case with anyone else, either in
person or by any other means. Do not do any independent investigation about the case or
conduct any research. Do not look up any words in dictionaries or on the Internet. Do not post
information about the case on the Internet. Do not share any special knowledge or experiences
with the other jurors. Do not use your phone or any other electronic device during your
deliberations for any reason, without pemtlssion from the Comt. When you enter the jury room
to deliberate, you must surrender your phone and any other electronic device.
1 EXHIBI
l _ _,!f_
'. -
Any notes you have taken are for your own personal use. You may take your notes back
into the jury room and consult them during deliberations, but do not show or read your notes to
your fellow jurors during your deliberations. Your notes are not evidence. Each of you should
rely on your independent recollection of the evidence and not be influenced by the fact that
another juror has or has not taken notes.
You must leave your notes with the bailiff when you are not deliberating. I will make
sure your notes are kept in a safe, secure location and not disclosed to anyone. After you
complete your deliberations, the bailiff will collect your notes, unless you choose to keep them.
When you are released from jury duty, the bailiff will promptly destroy your notes, unless you
have retained them, so that no one can read what you wrote.
Here are the instructions for answering the questions.
1. Do not let bias, prejudice or sympathy play any part in your decision.
2. Base your answers only on the evidence admitted in court and on the law that is in
these instructions and questions. Do not consider or discuss any evidence that was not admitted
in the courtroom.
3. You are to make up your own minds about the facts. You are the sole judges of
the credibility of the witnesses and the weight to give their testimony. But on matters of law,
you must follow all of my instructions.
4. If my instructions use a word in a way that is different from its ordinary meaning,
use the meaning I give you, which will be a proper legal definition.
5. All the questions and answers are important. No one should say that any question
or answer is not important
6. Answer "yes" or "no" to all questions unless you are told otherwise. A ''yes"
answer must be based on a preponderance of the evidence. Whenever a question requjres an
answer other than ''yes" or ''no," your answer must be based on a preponderance of the evidence.
The term ''preponderance of the evidence" means the greater weight of credible evidence
presented in this case. If you do not find that a preponderance of the evidence supports a "yes"
answer, then answer "no." A preponderance of the evidence is not measured by the number of
witnesses or by the number of documents admitted in evidence. For a fact to be proved by a
preponderance of the evidence, you must find that the fact is more likely true than not true.
A fact may be established by direct evidence or by circumstantial evidence or both. A
fact is established by direct evidence when proved by documentary evidence or by witnesses
who saw the act done or heaxd the words spoken. A fact is established by circumstantial
evidence when it may be fairly and reasonably inferred from other facts proved.
2
7. Do not decide who you think should win before you answer the questions and
then just answer the questions to match your decision. Answer each question carefully without
considering who will win. Do not discuss or consider the effect your answers will have.
8. Do not answer questions by drawing straws or by any method of chance.
9. Do not trade your answers. For example, do not say, ''I will answer this question
your way if you answer another question my way."
10. The answers to the questions must be based on the decision of at least 1Oof the 12
jurors. The same 10 jurors must agree on every answer. Do not agree to be bound by a vote of
anything less than 10 jurors, even if it would be a majority.
As I have said before, if you do not follow these instructions, it will be juror misconduct,
and I might have to order a new trial and start this process over again. This would waste your
time and the parties' money, and would require the taxpayers to pay for another trial. If a juror
breaks any of these rules, tell that person to stop, and if such juror fails to do so, report it to the
Court.
3
DEFINITIONS & INSTRUCTIONS
In answering the questions below, please follow these <;lefinitions and instructions.
1. The term ''Waller County'' includes the Waller County Commissioners Court,
Judge Glenn Beckendorff and Waller County Commissioners Frank Pok.luda, Stan Kitzman,
Jeron Barnett, ~d John Amsler.
2. Waller County is a governmental body.
3. All questions for the Jury relate to the time period on or before February 13, 2013.
4
DEFINITIONS AND INSTRUCTIONS FOR QUESTION NUMBERS 1, 2, 3. AND 4
1. A governmental body may consult with its attorney in executive session to discuss
the legal issues raised in connection with a proposed contract or a proposed ordinance, but it may
not discuss non-legal matters.
a. ''Non-legal matters" include but are not limited to: (1) merits of enacting
an ordinance; (2) merits of a proposed contract; (3) financial
considerations of a proposed contract; or (4) matters of public policy; or
(5) merits of an application.
b. Legal issues include advice given to Waller County regarding the legal
ramifications of facts and information and the legality of a proposed
contract or proposed ordinance.
2. "Deliberation" means a verbal exchange during a meeting between a quorum of a
governmental body, or between a quorum of a governmental body and another person,
co~cerning an issue within the jurisdiction of the governmental body or any public business.
3. "Meeting'' means:
a A deliberation between a quorum of a governmental body or between a
quorum of a governmental body and another person, during which public
business or public policy over which the governmental body has
supervision or control is discussed or considered or during which the
governmental body takes formal action, or
b. A gathering:
i. That is conducted by the governmental body;
ii. At which a quorum of members of the governmental body is
present;
iii. That has been called by the governmental body, and;
iv. At which the members receive information from, give information
to, ask questions of, or receive questions from any third person,
including an employee of the governmental body, about the public
business or public policy over which the governmental body has
supervision or control.
4. "Closed Meeting" means a meeting to which the public does not have access.
5. "Quorum" means a majority of a governmental body.
6. A "walking quorum" occurs when members of a governmental body gather in.
numbers that do not physically constitute a quorum at any one time but who,
through successive gatherings, secretly, and intentionally, discuss a public matter
with a quorum of that body at a place other than, a posted meeting.,
5
QUESTION NUMBER 1
Do you find that the Waller County Commissioner's Court deliberated non-legal matters
relating to Ordinance 2013-001 in a closed meeting?
Answer: --~=!"-'e_5
___ ("Yes" or "No")
6
QUESTION NUMBER2
Do you find that the Waller Cotmty Commissioner's Court deliberated non-legal matters
relating to the Host Agreement in a closed meeting?
Answer: .g-e) ("Yes" or "No")
7
.,
QUESTION NUMBER.3
Do you find that at least three (3) members of the Waller County Commissioners Court
eng~ed in a walkingquorum related to the following items below?
(a) Host Agreement
(b) Ordinance 2013-()01
8
QUESTION NUMBER 4
"Negotiate" means to try to reach an agreement or compromise by discussion with others.
Do you find that one or more members of the Waller County ~ommissioners Court acted
as a committee, authorized by at least three (3) members of the Commissioners Court, to
negotiate the terms of the following items before presentation to the Waller County
Commissioners Court for a vote?
Answer "Yes" or "No" for each of the following.
(a) Host Agreement Answer: ___,_j_eS..._____ (''Yes" or "No'')
(b) Ordinance 2013-001 Answer: -~-e"-)...,.,____ (''Yes'' or "No")
I
9
efY'
If you answered ''yes" to Question Number 4(a) or 4(b), answer Question Number# 5,
otherwise, do not answer Question Number 5.
QUESTION NUMBER 5
Do you find that there were any committee meetings held that were not open to the public
relating to the following?
(a) Host Agreement Answer: -~-f5
____ __ ("Yes" or ''No")
(b) Ordinance 2013-001 Answer: _~._....,r?_S___ (''Yes'' or ''No")
10
If you answered "yes" to Question Number 4(a) or 4(b), answer Question Number 6,
otherwise, do not answer Question Number 6 and proceed to Question Number 7.
INSTRUCTION FOR QUESTION NUMBER 6
A "rubber stamp" occurs when a committee's recommendations are approved without
meaningful discussion.
QUESTION NUMBER 6
Do you find that the Commissioners' vote at the FebI'Jlary 13, 2013 open meeting was a
rubber stamp of the following items?
(~) Host Agreement Answer: -B~e~) ____ ("Yes" or ''No")
(b) Ordinance 2013-001 Answer: -"-"--;-e_5_,_____ ("Yes" or ''No'')
(j
11
INSTRUCTION FOR QUESTION NUMBERS 7 THROUGH 9
Public information means information that is written, produced, collected, assembled, or
maintained under a law or ordinance or in connection with the transaction of official business.
Public Information includes all documents, regardless of physical form or characteristics, created
or received by Waller County in the transaction of public business. Public information includes,
but is not limited to, e-mails, text messages, and other electronic recordings.
Waller County is required to preserve and manage its Public Information in accordance
with applicable rules and laws governing the destruction and other disposition of state and local
government records or Public Information.
Each Waller County Commissioner and the Wa11er County Judge is the officer for public
information and the custodian of the information created or . received by that county
commissioners' office. Waller Collllty or the elected county officer for information of that
elective county office may determine a time for which information that is not currently in Use
will be preserved, subject to any applicable rule or law governing the destruction and other
disposition of state and local government records or public information.
As an officer for public information, each Waller County Commissioner or County
Judge is responsible for the release of public information. Each is required to: (1) make public
information available for public inspection and copying; (2) carefully protect public information
from deterioration, alteration, mutilation, loss, or unlawful rem.oval; and (3) repair, renovate, or
rebind public information as necessary to maintain it properly.
Each officer for public information is required to prominently display a sign containing
basic information about the rights of a requester, the responsibilities of a governmental body, and
the procedures for inspecting or obtaining a copy of public information. The officer shall display
the sign at one or more places in the administrative offices of the governmental body where it is
plainly visible to members of the public and employees of the governmental body whose duties
include receiving or responding to requests lIDder this chapter.
As officers for public information, Waller County Commissioners and the Waller County
Judge must promptly produce public information for inspectio~ duplication, or both upon
request by any person for public information: "Promptly" means as soon as possible under the
circumstances, that is, within a reasonable time, without delay. If an officer for public
information cannot produce public inforination for inspection or duplication within 1Obusiness
days after the date the information is requested, the officer must certify that fact in writing to the
requester and set a date and hour within a reasonable time when the information will be available .
for inspection or duplication.
12
QUESTION NUMBER 7
Do you find that County Judge Glenn Beckendorff failed to comply with any of the
following?
(a) Protecting public information from deterioration, alteration, mutilation, loss, or
unlawful removal;
(b) Displaying a sign containing basic information about the rights of a requestor, the
responsibilities of a governmental bo.dy, and the procedures for inspecting or
ob~g a copy of public information at one or more places in the administrative
offices of the govemmental body where it is plainly visible to members of the public
and employees of the governmental body;
(c) Promptly producing public information for inspection, duplication, or both upon
request by any person for public information;
(d) Certifying in writing to the requestor within 10 business days after the date the
infonnation was requested, that public information requested could not be produced
for inspection or duplication;
(e) Notifying the requestor within 10 business days after the request of a date and hour
within a reasonable time when the information would be available for inspection or
duplication to the requestor.
(''Yes" or "No")
I I
13
QUESTION NUMBER 8
Do you find that Waller County Precinct Two Commissioner Frank Pokluda failed to
comply with any of the following?
(a) Protecting public information from deterioration, alteration, mutilation, ~oss, or
unlawful removal;
(b) Displaying a sign containing basic information about the rights of a requestor, the
responsibilities of a governmental body, and the proc¢ures for inspecting or
obtaining a copy of public information at one or more places in the administrative
offices of the governmental body where it is plainly visiple to members of the public
and employees of the governmental body;
(c) Promptly producing public information for inspection, duplication, or both upon
request by any person for public infonnation;
(d) Certifying in writing to the requestor within 10 business days after the date the
information was requested, that publi~ information requested could not be produced
for inspection or·duplication;
(e) Notifying the requestor within 10 business days after the request of a date and hour
within a reasonable time when the information would be available for inspection or
duplication to the requestor.
Answer: -~-.e_5......, ___ ('Yes" or "No")
1
14
QUESTION NUMBER 9
Do you find that Waller Cmm.ty Precinct Four Commissioner Stan Kitzman failed to comply with
any of the following?
(a) Protecting public information from deterioration, alteration, mutilation, loss, or
unlawful removal;
(b) Displaying a sign containing basic information about the rights of a requester, the
responsibilities of a governmental body, and the procedures for inspecting or
obtaining a copy of public information at one or more places in the administrative
offices of the governmental body where it is plainly visi'ble to members of the public
and employees of the governmental body;
(c) Promptly producing public information for inspection, duplication, or both upon
request by any person for public information;
(d) Certifying in writing to the requestor within 10 business days after the date the
information was requested, that public information requested could not be produced
for inspection or duplication;
(e) Notifying the requestor within 10 business days after the request of a date and hour
within a reasonable time when the information would be available for inspection or
duplication to the requestor.
Answer: ~-es ("Yes,, or "No")
15
After you retire to the jury room, you will select your own presiding juror. The first thing
the presiding juror will do is to have this complete charge read aloud and then you will deliberate
upon your answers to the questions asked.
It is the duty of the presidIDg juror-
1. to preside during your deliberations,
2. to see that your deliberations are conducted in an orderly manner and in
accordance with the instructions in this charge,
3. to write out and hand to the bailiff any communications concerning the
case that you desire to have delivered to the judge,
4. to vote on the questions,
5. to write your answers to the questions in the spaces provided, and
6. to certify to your verdict in the space provided for the presiding juror's
signature or to obtain the signatures of all the jurors who agree with the
verdict ifyour verdict is less than 1manimous.
You should not discuss the case with anyone, not even with other members of the jury,
unless all of you are present and assembled in the jury room. Should anyone attempt to talk to
you about the case before the verdict is returned, whether at the courthouse, at your home, or
elsewhere, please inform the judge of this fact.
If you have a question, you must submit such question in writing to the Court. The
Presiding Juror must write out the question, sign same and hand the note to the Bailiff, vmo will
present it to the Court. Do not discuss _the question with the Bailiff.
When you have answered all the questions you are required to answer under the
instructions of the judge and your presiding juror has placed your answers in the spaces provided
and signed the verdict as presiding juror or obtained the signatures, you will inform the bailiff at
the door of the jury room that you have reached a verdict, and then you will return. into co
with your verdict.
16
Certificate
r
. '
We, the jury, have answered the above and foregoing questions as herein indicated, and
herewith return same into court as our verdict. Verd _.r r;1
10
(To be signed by the presiding juror if th~.j)Jl1'is unanimous.)
PRESIDING JUROR
Printed Name of Presiding Jur~ ~
I/ lfJ1c,,f- tPJ U
(To be signed by those rendering the verdict if the~is not 1manimous.)
Jurors' Printed Names
\
C~ru-t e.s b . 5-a;;r µ ,u..el/6
/111 Cff B:t. \ ~ -},., A:N N-0N
;e,; ``;
I
17
Cause No. 13-03-21872
CITY OF HEMPSTEAD, TEXAS § IN THE DISTRICT COURT OF
Plaintiff, §
§
and §
§
CITIZENS AGAINST THE LANDFILL § WALLER COUNTY, TEXAS
IN HEMPSTEAD §
§
v. §
§
WALLER COUNTY, TEXAS, ET. AL. §
Defendants. § 506rn JUDICIAL DISTRICT
AGREED FINAL JUDGMENT
Before the Court is the above-styled and numbered cause of action. On December I,
2014, the case was called for trial. Plaintiff City of Hempstead ("Hempstead") appeared through
its attorney of record and announced ready for trial. Plaintiff-Intervenor Citizens Against the
Landfill in Hempstead ("CALH") appeared through its attorney of record and announced ready
for trial. Defendants, Waller County, Texas including the elected officials of the Waller County
Commissioners Court, in their official capacities (collectively "Waller County"), appeared in
person and by their attorney of record and announced not ready for trial. Defendant, Pintail
Landfill, LLC, ("Pintail") appeared in person and by its attorney of record and announced not
ready for trial. After denying the Motions to Abate and Requests for Continuance, a jury,
consisting of 12 qualified jurors having been previously demanded, was duly empanelled and the
case proceeded to trial.
EXHlBlT
I B
e+++=· rn =
Agreed Final Judgment Page 1
The Court, after examining the record and the evidence and argument of counsel, finds
that venue is proper in Waller County, that the Court has jurisdiction over the subject matter and
the parties in this case, and that the Court has jurisdiction to enter a judgment in this case.
At the conclusion of the evidence, the Court submitted the questions of fact in the case to
the jury. The charge of the Court and the verdict of the jury are incorporated for all purposes by
reference, and attached hereto as Exhibit 1. The Parties also entered into certain Stipulations of
Fact, which are incorporated for all purposed by reference, and attached hereto as Exhibit 2.
Following the verdict of the jury of December 18, 2014, Hempstead, CALH, Pintail
Landfill and Waller County filed a Joint Motion for Entry of Agreed Final Judgment. In said
Motion, the parties represent that they have reached a settlement agreement concerning the jury
verdict and the remaining legal and factual issues pending before the Court and have agreed to
the entry of final judgment.
Accordingly, the Court renders the following Agreed Final Judgment:
IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that Waller County
Ordinance No. 2013-001 is void.
IT IS FURTHER ORDERED that the Host Agreement between Waller County, Texas,
and Pintail Landfill, LLC is void.
IT IS FURTHER ORDERED that Plaintiff City of Hempstead have and recover from
Waller County attorneys' fees in the amount of Two Hundred Forty-Five Thousand Dollars and
no cents ($245,000).
IT IS FURTHER ORDERED that Plaintiff-Intervenor Citizens Against the Landfill in
Hempstead have and recover from Waller County attorneys' fees in the amount of Three
Hundred Twenty-Five Thousand Dollars and no cents ($325,000).
Agreed Final Judgment Page2
IT IS FURTHER ORDERED that the total amount of the judgment rendered will bear
interest at a rate of Five Percent (5%) per annum from the date of this judgment until paid in full.
Pursuant to the terms of the parties' settlement agreement giving rise to this Agreed Final
Judgment, the parties do not present to this Court for adjudication, and this Court does not adjudicate,
any issue concerning any claim, defense, or assertion, whether one or more, that has been or may in
the future be raised in any forum, regarding the validity of Waller County Ordinance No. 2011-001
and/or its applicability to (a) Texas Commission on Environmental Quality MSW Registration No.
40259 (Pintail Landfill Transfer Station), (b) Texas Commission on Environmental Quality MSW
Permit Application No. 2377 (Pintail Landfill), and/or (c) all or any part of the 410.37 acre facility
site described in such Registration and Permit Application.
All costs of court spent or incurred in this cause are to be borne by the party incurring
same. All writs and processes for the enforcement and collection of this judgment may issue as
necessary.
All other relief requested in the live pleadings of any party that is not specifically granted
is DENIED. This is a final judgment that disposes of all claims and parties.
SIGNED this _ _ day of _ _ _ _ _ _ __, 2015.
TERRY L. FLENNIKEN, JUDGE PRESIDING
Agreed Final Judgment Page 3
AGREED AS TO FORM AND SUBSTANCE:
Art Pertile
Corey R. Ouslander James P. Allison
couslander@olsonllp.com J. Eric Magee
OLSON &OLSON, L.L.P. e.magee@allison-bass.com
Wortham Tower, Ste. 600 Allison, Bass & Associates, LLP
2727 Allen Parkway 402 W. 12th St.
Houston, Texas 77019 Austin, Texas 78701
Phone: (713) 533-3800 Phone: (512) 482-0701
Facsimile: (713)533-3888 Facsimile: (512)480-0902
ATTORNEYS FOR CITY OF HEMPSTEAD ATTORNEYS FOR WALLER COUNTY
DEFENDANTS
By:_ _ _ _ _ _ _ _ _ __
By:_ _ _ _ _ _ _ _ _ __
V. Blayre Pefia Brent Ryan
bpena@hslawmail.com bryan@msmtx.com
Hance Scarborough McElroy, Sullivan, Miller,
400 W. 15th Street, Ste. 950 Weber & Olmstead, L.L.P.
Austin, Texas 78701 P.O. Box 12127
Phone:512-479-8888 Austin, Texas 78711
Fascimile: 512-482-6891 fax Phone: (512) 327-8111
Facsimile: (512)327-6566
Carol Chaney ATTORNEYS FOR PINT AIL LANDFILL, L L C
Carol.chaney@thechaneyfirm.net
Law Office of Carol A. Chaney
820 13th Street
P.O.Box966
Hempstead, TX 77445
Phone: (979) 826-6660
Fascimile: (979) 826-8989
ATTORNEYS FOR INTERVENORS/CITIZENS
AGAINST LANDFILL
By:_ _ _ _ _ _ _ __ By:_ _ _ _ _ _ _ _ _ __
Agreed Final Judgment Page4
Cause No. 13-03-21872
CITY OF HEMPSTEAD, TEXAS § IN THE DISTRICT COURT OF
Plaintiff, §
§
and §
§
CITIZENS AGAINST THE LANDFILL § WALLER COUNTY, TEXAS
IN HEMPSTEAD §
§
v. §
§
WALLER COUNTY, TEXAS, ET. AL. §
Defendants. § 506TH ruDICIAL DISTRICT
AGREED FINAL JUDGMENT
Before the Court is the above-styled and numbered cause of action. On December 1,
2014, the case was called for trial. Plaintiff City of Hempstead ("Hempstead") appeared through
its attorney of record and announced ready for trial. Plaintiff-Intervenor Citizens Against the
Landfill in Hempstead ("CALH") appeared through its attorney of record and announced ready
for trial. Defendants, Waller County, Texas including the elected officials of the Waller County
Commissioners Court, in their official capacities (collectively "Waller County"), appeared in
person and by their attorney of record and announced not ready for trial. Defendant, Pintail
Landfill, LLC, ("Pintail") appeared in person and by its attorney of record and announced not
ready for trial. After denying the Motions to Abate and Requests for Continuance, a jury,
consisting of 12 qualified jurors having been previously demanded, was duly empanelled and the
case proceeded to trial.
Agreed Final Judgment Page 1
The Court, after examining the record and the evidence and argument of counsel, finds
that venue is proper in Waller County, that the Court has jurisdiction over the subject matter and
the parties in this case, and that the Court has jurisdiction to enter a judgment in this case.
At the conclusion of the evidence, the Court submitted the questions of fact in the case to
the jury. The charge of the Court and the verdict of the jury are incorporated for all purposes by
reference, and attached hereto as Exhibit 1. The Parties also entered into certain Stipulations of
Fact, which are incorporated for all purposed by reference, and attached hereto as Exhibit 2.
Following the verdict of the jury of December 18, 2014, Hempstead, CALH, Pintail
Landfill and Waller County filed a Joint Motion for Entry of Agreed Final Judgment. In said
Motion, the parties represent that they have reached a settlement agreement concerning the jury
verdict and the remaining legal and factual issues pending before the Court and have agreed to
the entry of final judgment.
Accordingly, the Court renders the following Agreed Final Judgment:
IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that Waller County
Ordinance No. 2013-001 is void.
IT IS FURTHER ORDERED that the Host Agreement between Waller County, Texas,
and Pintail Landfill, LLC is void.
IT IS FURTHER ORDERED that Plaintiff City of Hempstead have and recover from
Waller County attorneys' fees in the amount of Two Hundred Forty-Five Thousand Dollars and
no cents ($245,000).
IT IS FURTHER ORDERED that Plaintiff-Intervenor Citizens Against the Landfill in
Hempstead have and recover from Waller County attorneys' fees in the amount of Three
Hundred Twenty-Five Thousand Dollars and no cents ($325,000).
Agreed Final Judgment Page 2
IT IS FURTHER ORDERED that the total amount of the judgment rendered will bear
interest at a rate of Five Percent (5%) per annum from the date of this judgment until paid in full.
Pursuant to the terms of the parties' settlement agreement giving rise to this Agreed Final
Judgment, the parties do not present to this Court for adjudication, and this Court does not adjudicate,
any issue concerning any claim, defense, or assertion, whether one or more, that has been or may in
the future be raised in any forum, regarding the validity of Waller County Ordinance No. 2011-001
and/or its applicability to (a) Texas Commission on Environmental Quality MSW Registration No.
40259 (Pintail Landfill Transfer Station), (b) Texas Commission on Environmental Quality MSW
Permit Application No. 2377 (Pintail Landfill), and/or (c) all or any part of the 410.37 acre facility
site described in such Registration and Permit Application.
All costs of court spent or incurred in this cause are to be borne by the party incurring
same. All writs and processes for the enforcement and collection of this judgment may issue as
necessary.
All other relief requested in the live pleadings of any party that is not specifically granted
is DENIED. This is a final judgment that disposes of all claims and parties.
SIGNED this _ _ day of _ _ _ _ _ _ _, 2015.
TERRY L. FLENNIKEN, JUDGE PRESIDING
Agreed Final Judgment Page 3
AGREED AS TO FORM AND SUBSTANCE:
Art Pertile
Corey R. Ouslander James P. Allison
couslander@olsonllp.com J. Eric Magee
OLSON & OLSON, L.L.P. e.magee@allison-bass.com
Wortham Tower, Ste. 600 Allison, Bass & Associates, LLP
2727 Allen Parkway 402 W. 12th St.
Houston, Texas 77019 Austin, Texas 78701
Phone: (713) 533-3800 Phone: (512) 482-0701
Facsimile: (713)533-3888 Facsimile: (512)480-0902
ATTORNEYS FOR CITY OF HEMPSTEAD ATTORNEYS FOR WALLER COUNTY
DEFENDANTS
By:_ _ _ _ _ _ _ _ _ __
By:_ _ _ _ _ _ _ _ _ __
V. Blayre Pefia Brent Ryan
bpena@hslawmail.com bryan@msmtx.com
Hance Scarborough McElroy, Sullivan, Miller,
400 W. 15th Street, Ste. 950 Weber & Olmstead, L.L.P.
Austin, Texas 78701 P.O. Box 12127
Phone:512-479-8888 Austin, Texas 78711
Fascimile: 512-482-6891 fax Phone: (512) 327-8111
Facsimile: (512)327-6566
Carol Chaney ATTORNEYS FOR PINTAIL LANDFILL, LLC
Carol.chaney@thechaneyfirm.net
Law Office of Carol A. Chaney
820 13th Street
P.O. Box966
Hempstead, TX 77445
Phone: (979) 826-6660
Fascimile: (979) 826-8989
ATTORNEYS FOR INTERVENORS/CITIZENS
AGAINST LANDFILL
By:_ _ _ _ _ _ _ _ _ __ By:_ _ _ _ _ _ _ _ _ __
Agreed Final Judgment Page4
ru~ r " ' • • 1 ,
·. AT 2 : 0 1 O'Clock p M
PATRICIA JAMES SPADACHENE
BYWALL~ TEXAS
DEPUTY
CAUSE NO. 13-03~21872
CI1Y OF HEMPSTEAD, Texas, § JN Tiffi DISTR1CT COURT OF •
Plaintiff §
§
And §
§
CITIZENS AGAINST THE LANDFILL IN §
HEMPSIB.AD, §
Plaintiff Intervenor §
§
v. § WALLER COUNTY, TEXAS
§
WALLER COUNTY, TEXAS, COUNTY §
JUDGE BLENN BECKENDORFF, §
COMMISSIONER FRANK POKLUDA, §
COMMISSIONER STAN KITZMAN, §
COMMISSIONER JER.ON BARNET, §
COMMISSIONER JOHN AMSLER, and § 506th ruDICIAL DISTRICT
PINTAIL LANDFILL, L.L.C. §
Defendants. §
CHARGE OF THE COURT
MEMBERS OF THE JURY:
After closing arguments, you will go to the jury room to decide the case, answer the
questions that are attached, and reach a verdict. You may discuss the case with other jurors only
when you are all together in the jmy room.
This case is submitted to you by asking questions about the facts, which you must decide
from the evidence you have heard in this 1rial. You are the sole judges of the credibility of the
witnesses 2!ld the weight to be given their testimony, but in matters of law, you must be
governed by the inst;ructions in this charge. In discharging your responsibility on this jury, you
will observe all the instructions which have previously been given you. I sh8ll now give you
additional instructions which you should carefully and strictly follow during your deliberations.
Remember my previous instructions: Do not discuss the case with anyone else, either in
person or by any other means. Do not do any independent investigation about the case or
conduct any research. Do not look up any words mdictionaries or an the Internet. Do not post
info~tion about the case on the Internet. Do not share any special knowledge or experiences
with the other jurors. Do not use your phone or any other electronic device during your
deliberations for any reason, with.out pezmission from the Court. When you enter the jury room
to deliberate, you must SUIIender your phone and any other electronic device.
1
I
. .. - ·· . . .... ·····• ·:·.. . ...... .
Any notes you have taken are for your own personal use. You may take your notes back
into the jury room and consult them during deliberations, but do not show or read your notes to
your fellow jurors during your deh'berati.ons. Your notes are not evidence. Each of you should
rely on your independent recollection of the evidence and not be influenced by the fact that
another juror has or has not taken notes.
You must leave your notes with the bailiff when you are not deliberating. I will make
sure your notes are kept in a safe, secure location and not disclosed to anyone. After you
complete your deliberations, the bailiff will collect your notes, unless you choose to keep them.
When you are released from jury duty, the bailiff will promptly destroy your notes, unless you
have retained them, so that no one can read what you wrote.
Here are the instructions for answering the questions.
1. Do not let bias, prejudice or sympathy play any part in your decision.
2. .Base your answers only on the evidence admitted in court and on the law that is in
these instructions and questions. Do not consider or discuss any evidence that was not admitted
in the courtroom.
3. You are to make up your own minds about the facts. You are the sole judges of
the credibility of the witnesses and the weight to give their testimony. But on matters of law,
you must follow all of my instructions.
4. If my instructions use a word in a way that is different from its ordinary meaning,
use the meaning I give you, which will be a proper legal definition.
5. All the questions and answers are important. No one should say that any question
or answer is not important
6. Answer "yes" or "no" to all questions unless you are told 0th.en.vise. A ''yes"
answer must be based on a preponderance of the evidence. Whenever a question requires an
answer other than 'yes" or "no,'' your answer must be based on a preponderance of the evidence.
The term "preponderance of the evidence" means the greater weight of credible evidence
presented in this case. If you do not find that a preponderance of the evidence supports a ''yes"
answer, then answer "no." A preponderance of the evidence is not measured by the number of
witnesses or by the number of documents admitted in evidence. For a fact to be proved by a
preponderance of the evidence, you must find that the fact is more likely true than not true.
A fact may be established by direct evidence or by circumstantial evidence or both. A
fact is established by direct evidence when proved by documentary evidence or by witnesses
who saw the ·act done or heard the words spoken. A fact is established by circumstantial
evidence when it may be fairly and reasonably inferred from other facts proved.
2
7. Do not decide who you think should win before you answer the questions and
then just answer the questions to match your decision. Answer each question carefully without
considering who will win. Do not discuss or consider the effect your answers will have.
8. Do not answer questions by drawing straws or by any method of chance.
9. Do not trade your answers. For example, do not say, "I will answer this question
your way if you answer another question my way."
10. The answers to the questions must be based on the decision of at least 10 of the 12
jurors. The same 10 jurors must agree on every answer. Do not agree to be bound by a vote of
anything less than 10 jurors, even if it would be a majority.
AB I have said before, if you do not follow these instructions, it will be juror misconduct,
and I might have to order a new trial and start this process over again. 1bis would waste your
time and the parties' money, and would require the taxpayers to pay for another trial. If a juror
breaks any of these rules, tell that person to stop, and if such juror fails to do so, report it to the
Court.
3
· ·-··· ·::· . .. .. ... .. ...... ..... .
DEFINITIONS & INSTRUCTIONS
In answering the questions below~ please follow these Q.efinitions and instructions.
1. The tenn ''Waller County', includes the Waller County Commissioners Court,
Judge Glenn Beckendorff and Waller County Commissioners Frank Pokluda, Stan Kitzman,
JeronBamett, ~dJohnAmsler.
2. Waller County is a governmental body.
3. All questions for the Jury relate to the time period on or before February _13, 2013.
4
.. ·.· . ... ... .. - • a •O • •••• • ' : .... ~ - ." ' " ' " "'! .. .... ·····• • I
DEFINITIONS AND INSTRUCTIONS FOR QUESTION NUMBERS 1, 2, 3, AND 4
1. A governmental body may consult with its attorney in executive session to discuss
the legal issues raised in connection. with a proposed contract or a proposed ordinance, but it may
not discuss non-legal matters.
a. "Non-legal matters" include but are not limited to: (1) merits of enacting
an ordinance; (2) merits of a proposed contract; (3) financial
considerations of a proposed contract; or (4) matters of public policy; or
(5) merits of an application.
b. Legal issues include advice given to Waller County regarding the legal
ramifications of facts and information and the legality of a proposed
contract or proposed ordinance.
2. "Deliberation" means a verbal exchange during a meeting between a quorum of a
governmental body, or between a quorum of a governmental body and another person,
co~cerning an issue within the jurisdiction of the governmental body or any public business.
3. "Meeting'' means!
a. A deliberation between a quorum of a governmental body or between a
quorum of a governmental body and another person, during which public
business or public policy over which the governmental body has
supervision or control is discussed or considered or during which the
governmental body takes formal action, or
b. A gathering:
i. That is conducted by the governmental body;
ii. At which a quorum of members of the govetnmen.tal body is
present;
iii. That has been called by the governmental body, and;
iv. At which the members receive information from, give information
to, ask questions of, or receive questions from any third person,
including an employee of the governmental body, about the public
business or public policy over which the governmental body has
supervision or control.
4. "Closed Meeting" means a meeting to which the public does not have access.
5. "Quorum" means a majority of a governmental body.
6. A "walking quorum" occurs when members of a governmental body gather in
numbers th.at do not physically constitute a quorum at any one time but who,
through successive gatherings, secretly, and intentionally, discuss a public matter
with a quorum of that body at a place other than a posted meeting.
\
5
I
I
. ·: ..::.··.:: •: :: . ···----·--·· ·:. ··-. -: · ·:,
QUESTION NUMBER 1
Do you find that the Waller County Commissioner's Court deliberated non-legal matters
relating to Ordinance 2013-001 in a closed meeting?
Answer: --``,_e_s __ (''Yes" or ''No")
I
6
. ... . ... ... ·····-· .. . . . ·--··· .... .. .. ................
QUESTION NUMBER2
Do you find that the Waller County Commissioner's Court deliberated non-legal matters
relating to the Host Agreement in a closed meeting?
("Yes" or "No")
7
. . • .•• . ·• ••t ••• •. '" ' ···-,, • ••• •·-· - •''"-·-· • •••••I
!L
I
QUESTION NUMBER 3
Do you find that at least three (3) members of the Waller County Commissioners Court
enga~ed in
a walking quorum related to the following items below?
(a) HostAgreement
(b) Ordinance 2013-901
8
..... ..• • • •• • · ·-J · - ·· ...•-• • •• • ··-·-· • •• • I .. . .,
QUESTION NUMBER 4
"Negotiate" means to try to reach an agreement or compromise by discussion with others.
Do you find that one or more members of the Waller County Gommissioners Court acted
as a committee, authorized by at . least three (3) members of the Commissioners Court, to
negotiate the terms of the following items before presentation to the Waller County
Commissioners Court for a vote?
Answer "Yes" or ''No" for each ofth.e following.
(a) Host Agreement Answer: ---.j-+-e_S______ (''Yes" or "No")
(b) Ordinance 2013-001 Answer: -~,,..._e5_____ (''Yes" or "No")
9
... •. ·1 .. ............, ··.·.····-·-· ... ___ , ... ......, . ........ .. .. ······· ..,
. 11¥
If you answered "yes" to Question Number 4(a) or 4(b), answer Question Number/ 5,
otherwise, do not answer Question Number 5,
QUESTION NUMBER 5
Do you find that there were any committee meetings held that were not open to the public
relating to the following?
(a) Host Agreement Answer: _...,.~_5......____ ("Yes" or "No")
(b) Ordinance 2013-001 Answer: -``e_5 ___ ("Yes" or ''No")
/
10
• .. ·· 1· .. ·-.. ··· •· •· · ., ... . . ···- ·· · .. . .. , . . . • ·.:· ~ ·; · ·- ·. ··· ·· .. .,
If you answered "yes" to Question Number 4(a) or 4(b)J answer Question Number 6J
otherwise, do not answer Question Number 6 and proceed to Question Number 7,
INS1RUCTION FOR QTIES110N NUMBER 6
A "rubber stamp" occurs when a committee's recommendations are approved without
meaningful discussion.
QUESTION NUMBER 6
Do you find that the Commissioners' vote at the Febniary 13J 2013 open meeting was a
rubber stamp of the follow.ing items?
(~) l!ost.A.greement Answer: --:!:~s.--'-e"5._____ ("Yes" or ''No")
(b) Ordinance 2013-001 Answer: _L\--o:::re_5_____ ("Yes" or ''No")
d
11
.~·.lo· · · ......,: ... • ·i · • .,! • ~'!"_:.! • • • • .:.``. · . . ... ..
• · :. : .: :1 ··· : ·· ·········\
INSTRUCTION FOR QUFSTIONNUMBERS 7 THROUGH 9
Public information means info:nnation that is written, produce4, collected, assembled, or
maintained under a law or otdinance or in connection with the transaction of official business.
Public Information includes all documents, regardless of physical form or characteristics, created
or received by Waller County in the transaction of public business. Public information includes,
but is not limited to, e-mails, text messages, and other electronic recordings.
Waller County is required to preserve and manage its Public Information in accordance
with applicable rules and laws governing the destruction and other disposition of state and local
government records or Public Information.
Each Waller County Commissioner and the Waller County Judge is the officer for public
infonnation and the custodian of the information created or. received by that county
commissioners' office. Waller County or the elected county officer for information of that
elective county office may determine a time for which information that is not currently in Use
will be preserved, subject to any applicable rule or law governing the destruction and other
disposition of state and local government records or public information.
As an officer for public infonn.ation, each Waller County Commissioner or County
Judge is responsible for the release of public information. Each is required to: (1) make public
informa,tion available for public inspection and copying; (2) carefully protect public information
from deterioration, alteration, mutilation, loss, or unlawful removal; and (3) repair, renovate, or
rebind public information as necessary to maintain it properly.
Each officer for public information is required to prominently display a sign containing
basic infonnation about the rights of a requestor, the responsibilities of a govemmental body, and
the procedures for inspecting or obtaining a copy of public information. The officer shall display
the sign at one or more places in the administrative offices of the governmental body where it is
plainly visible to members of the public and employees of the governmental body whose duties
include receiving or responding to requests under this chapter.
As officers for public infonn.ation, Waller County Commissioners and the Waller County
Judge must promptly produce public information for inspection, duplication, or both upon
request by any person for public information: "Promptly" means as soon as possible under the
circumstances, that is, within a reasonable time, without delay. If an officer for public
infonnation cannot produce public inforination for inspection or duplication within 10 business
days after the date the information is requested, the officer must certify th.at fact in writing to the
requester and set a date and hour within a reasonable time when the information will be available.
for inspection or duplication.
12
- ··' '· ........ ······ .... .... ... .. .. ·-·. ... ... . . .. .. .
QUESTION NUMBER 7
Do you find that County Judge Glenn Beckendorff failed to comply with any of the
following?
(a) Protecting public information from deterioration, alteration, mutilation, loss, or
unlawful removal;
(b) Displaying a sign containfilg basic information about the rights of a requestor, the
responsibilities of a governmental bo.dy, and the procedures for inspecting or
ob:taining a copy of public .information. at one or more places in the administrative
offices of the governmental body where it is plainly visible to members of the public
and employees of the governmental body;
(c) Promptly producing public information for inspection, duplication, or both upon
request by any person for public information;
(d) Certifying in writing to the requester within 10 business days after the date the
.information was requested, that public information requested could not be produced
for inspection or duplication;
(e) Notifying the requester within 10 business days after the request of a date and hour
within a reasonable time when the information would be available for inspection or
duplication to the requestor.
("Yes" or "No")
13
. .. .. ...... ... ...... .. ···· ··~· 7 •• · .. ···--· ·········· . . . .. .. . . ..
QUESTION NUMBER 8
Do you :find that Waller County Precinct Two Commissioner Frank Pokluda failed to
comply with any of the following?
(a) Protecting public information from deterioration, alteration, mutilation, ~oss, or
unlawful removal;
(b) Displaying a sign containing basic information about the rights of a requestor, the
responsibilities of a governmental body, and the proc~dures . for inspecting or
obtaining a copy of public information at one or more places in the administrative
offices of the governmental body where it is plainly visiple to members of the public
and employees of the governmental body;
(c) Promptly producing public information for inspection, duplication, or both upon
request by any person for public infonnation;
(d) Certifying in writing to the requestor within 10 business days after the date the
information was requested, that publiq information requested could not be produced
for inspection or duplication;
(e) Notifying the requestor within 10 business days after the request of a date and hour
within a reasonable time when the information would be available for inspection or
duplication to the requester.
Answer: ---'~o.+.e..=:....,,...)_ _ _ C'Yes" or "No")
I
14
... . ...... . .... ,.... ... .... ......,,._. ....... ··--··· ....
_ _ . .. .... .. ······
• .
QUESTION NUMBER 9
Do you find that Waller County Precinct Four Commissioner Stan Kitzman failed to comply with
any of the following?
(a) Protecting public information from deteriorationJ alteration, mutilation, loss, or
unlawful removal;
(b) Displaying a sign containing basic information about the rights of a requester, the
responsibilities of a governmental bodyJ and the procedures for inspecting or
obtaining a copy of public information at one or more places in the administrative
offices of the governmental body where it is plainly visible to members of the public
and employees of the governmental body;
(c) Promptly producing public information for inspection, duplication, or both upon
request by any person for public information;
(d) Certifying in writing to the requester within 10 business days after the date the
information was requested, that public information requested could not be produced
for inspection or duplication;
(e) Notifying the requestor within 10 business days after the request of a date and hour
within a reasonable time when the information would be available for inspection or
duplication to the requestor.
Answer: _``-e. s'---__
.. ("Yes" or ''No")
15
.... . ... .... ... ............... 1o1·- ·- ... ,;•-. ...... , .
After you retire to the jury room, you will select your own presiding juror. The first thing
the presiding juror will do is to have this complete charge read aloud and then you will deliberate
upon your answers to the questions asked.
It is the duty of the presiding juror-
1. to preside during your deliberations,
2. to see that your deliberations are conducted in an orderly manner and in
accordance with the instructions in this charge,
3. to write out and band to the bailiff any communicatlons concerning the
case that you desire to have delivered to the judge,
4. to vote on the questions,
5. to write your answers to the questions in the spaces provided, and
6. to certify to your verdict in the space provided for the presiding juror's
signature or to obtain the signatures of all the jurors who agree with the
verdict if your verdict is less than lmanimous.
You should not discuss the case with anyone, not even with other members of the jury,
unless all of you are present and assembled in the jury room. Should anyone attempt to talk to
you about the case before the verdict is returned, whether at the courthouse, at your home, or
elsewhere, please inform the judge of this fact.
If you have a question, you must submit such question in writing to the Court. The
Presiding Juror must write out the question, sign same and hand the note to the Bailiff, who will
present it to the Court Do not discuss _the question with the Bailiff.
When you have answered all the questions you are required to answer under the
instructions of the judge and your presiding juror has placed your answers in the spaces provided
and signed the verdict as presiding juror or obtained the signatures, you will inform the bailiff at
the door of the jury room tha.t you have reached a verdict, and then you will return. into co
with your verdict
16
Certificate
. .
herewith return same into court as our verdict. Verd
Ic..-..Y
(To be signed by the presiding jmor if th~lS unanirnous.)
r
We, the jury, have answered the above and foregoing questions as herein indicated, and
r/J
PRESIDlNG JUROR
Printed Name of Presiding Jur~ ~
u
llflfJ1c.,,f- ll71
(To be signed by those rendering the verdict if the)Y!Y is not unanimous.)
Jurors' Printed Names
I
CiA.me.s 'D. SrE;r µ u-e0 6
fl/ Ic. f-f B:f- ~ fA . J._ A-N N0 N
Jz,~ :z~:
'·
17
CAUSE NO. 13-03-21872
CITY OF HEMPS1EAD, Texas, § IN TIIE DISTRICT COURT OF
Plaintiff §
§
And §
§
CITIZENS AGAINST TIIE LANDFILL IN §
HEMPSTEAD, §
Plaintiff Intervenor §
§
v. § WALLER COUNTY, TEXAS
§
WALLER COUNTY, TEXAS, COUNTY §
JUDGE BLENN BECKENDORFF, §
COMMISSIONER FRANK POKLUDA, §
COMMISSIONER STAN KITZMAN, §
COMMISSIONERJERON BARNET, §
COMMISSIONER JOHN AMSLER, and § 5066 JUDICIAL DISTRICT
PINTAIL LANDFILL, L.L.C. §
Defendants. §
AGREED STIPULATIONS OF FACT
COMES NOW Plaintiff City of Hempstead, Plaintiff Intervenor Citizens Against
the Landfill in Hempstead, and Defendants Waller County, Texas, County Judge Glenn
:Be<;kendorif, Commissioner Frank Pokluda, Commissioner Stan Kitzman, Commissioner
Jeron Barnett, Commissioner John Amsler, and Pintail Landfill, LLC and presents these
Agreed Stipulations of Fact to the Court. The P.erties agree that the existence of such
stipulations sba!l not be published to the Jwy or mentioned in argmnent before the jury.
I. Agreed Stipul:atioras -, - - - . . . . - - -
Jt;d7ri /J/'°'51~.., I
t~
19, 2012. The Waller County agenda notices and minutes for these meetings do not
claim Texas Government Code § 551.0725 as authority for entering executive session.
Further, Waller County Commissioners Court did not meet any of the
requirements to deliberate business or financial issues relating to a contract being
negotiated, which are enumerated in Texas Government Code§ 551.0725. Specifically,
(1) the Waller County Commissioners Court did not vote unanimously that deliberation
would have a. detrimental effect on the position of the Commissio~ers Court in
negotiating with a third person before conducting the closed meeting; (2) the attorney
advising the Waller Collllty Commissioners Court did not issue a written determination
that deliberation in an open meeting would have a detrimental effect qn the position of
the Com.missioners Court in negotiating with a third person before conducting the closed
meeting; and (3) the Waller County Commissioners Court did not make a tape recording
of the closed meeting.
II. Agreed Stipulation of Fact Regarding E:1.traterritorW Jurisdiction of City of
Hempstea~
Tue Ordinance 2013.001 authorizes and allows disposal of solid waste within
certain areas of the City of Hempstead's extraterritorial jurisdiction ("ETJ"). Those
certain areas consist of the areas described jn Exhibit A of Ordinance 2013·001 that are
within one mile of the yity limits of the City of Hempstead.
ID. Agreed Stipulation of Fact that the Host Agreement is a Contract.
The Host Agreement is a contract.
AGREED STIPULATIONS OF FACT Pagc2 of3
Agreed:
Kelly Dempsey J. Eric Magee
Kdempsey@olsonllp.com e.magee@allison-bass.com
Corey R. Ouslander Allison, Bass & Associates, LLP
couslander@olsonllp.com 402 W. 121b St
OLSON & OLSON, L.L.P. Austin, Texas 78701
Wortbmn Tower, Ste. 600 Phone: (512) 482-0701
2727 Allen Parkway Facsimile: (512)480-0902
Houston, Texas 77019 ATIORNEYS FORWALLER COUNTY
Phone: (713) 533-3800 DEFENDANTS
Facsimile: (713)533-3888
ATTORNEYS OR CITY OF HEMPSTEAD
,A(~')/
By:_ __.GL-..,c....i``~'-----
V. Blayre Pena Brent Ryan
bpena@hslawmail.com bryan@msmtx.com
Wesley P; McGuffey McElroy, Sullivan, Miller,
wmcguffey@hslawmail.com Weber & Olmstead, L.L.P.
Hance Scarborough, LLP P.O. Box 12127
400 W. 15th Street, Ste. 95·0 Austin, Texas 78711
Austin, Texas 78701 Phone: (512) 327-8111
Phone;512-479-8888 Facsimile: (512)327-6566
Facsimil~: 512-482-6891 fax ATTORNEYS Fon PINTAIL LANDFILL, LLC
Carol Chaney
Carolchaney@thechaneyfirm.net
Law Office of Carol A. Chaney
820 13th Street
P.O. Box966
Hempstead, TX 77445
Phone: (979) 826-6660
Facsimile: (979) 826-8989
By:~
ATTORNEYS FOR
INTERVENORS/CrnzENS AGAINST
LANDFILL
AGREEDSTIPULA.TIONSOFFACT Page 3 of3
EXHIBIT F
THE STATE OF TEXAS §
§ KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF WALLER §
RESOLUTION IN SUPPORT OF MOTION TO DISMISS
Concerning Becke11dmff et. al. v. City of Hempstead, et. al., No. 14-15-00322-CV,
011 Appeal from the 5061/t J11dicial Dfa·trict Court of Waller County Texas
WHEREAS, following the verdict of the jury of December 18, 2014 in case entitled, City of
Hempstead and Citizens Against the Landfill in Hempstead v. Waller County, Texas, et al.;
Cause No. 13-03-21872, all parties filed a Joint Motion for Entry of Agreed Final Judgment;
and
WHEREAS in the Agreed Final Judgment signed on February 20, 2015, all parties to the suit
represented that they had reached a settlement agreement concerning the jury verdict and the
remaining legal and factual issues pending before the Court; and
WHEREAS the Commissioners Court of Waller County, Texas finds that the Judgment was
final and disposed of all claims and parties and became binding; and
WHEREAS a Notice of Appeal from the Agreed Final Judgment was then filed on April 2,
2015 by Glenn Beckendorff, purporting to be in his official capacity as Waller County Judge;
and
WHEREAS Frank Pokluda and Stan Kitzman both purporting to be in their official capacities
as Commissioner Precinct 2, and Commissioner Precinct 4, respectively, joined in the Notice of
Appeal filed by Glenn Beckendorff; and
WHEREAS, the appellants Glenn Beckendorff, Frank Pokluda, and Stan Kitzman have no
authority and standing to appeal the Agreed Final Judgement because appellants have ceased to
hold office after December 31, 2014, and
WHEREAS, the Commissioners Court of Waller County, Texas has given no authorization to
pursue an Appeal of the Agreed Final Judgment, and
EXHIBIT
I A
WHEREAS, the Commissioners Court does not seek to disturb the Agreed Final Judgment
reached with all parties in the original suit;
NOW THEREFORE, BE IT RESOLVED, that Waller County acting by and through its
Commissioners Court respectfully requests that the Court of Appeals for the Fourteenth District
of Texas dismiss the current pending matter entitled, Glenn Beckendorff. in his Offica/ Capacity
as 1Valler County Judge, et al. v. City ofHempstead. et al; Cause No. 14-15-00322, and
authorizes and instructs Waller County District Attorney, Elton R. Mathis to file a Motion to
Dismiss on behalf of Waller County.
PASSED and APPROVED on the /~CA..da of J vote of if ayes and -&-. nays
1 abstained
ATTEST
.-
~
.·
EXHIBIT G
IN THE COURT OF APPEALS
-------JUDICIAL DISTRICT OF TEXAS
HOUSTON, TEXAS
GLENN BECKENDORFF,
Appellant,
v.
CITY OF HEMPSTEAD, TEXAS,
CITIZENS AGAINST THE LANDFILL IN HEMPSTEAD, and
PINTAIL LANDFILL, LLC,
Appellees.
STATE OF TEXAS )
)
COUNTY OF HARRIS )
AFFIDAVIT
BEFORE ME, the undersigned authority, on this day personally appeared
Floyd Glenn Beckendorff, a person whose identity is known to me, who upon his
oath first administered by me, stated the following:
1. My name is Floyd Glenn Beckendorff. I am over 21 years of age and
am otherwise fully capable of making this affidavit. I have personal knowledge of the
facts stated in this affidavit, and they are true and correct.
2. I was County Judge of Waller County at all times relevant to this lawsuit
except after December 31, 2014 when I did not seek re-election.
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EXHIBIT A
3. It was my understanding that I was no longer going to be a party to the
lawsuit after December 31, 2014 because I was no longer an elected official.
Further, it was not necessary that I participate. It was the office of Judge of the
County that was being sued--not the individual.
4. I further understood that I did not and would not have representation
through counsel selected by the insurer for the county after December 31, 2014 but
would not need any such representation.
5. Ever since the verdict was rendered, I had intended to consider an
appeal if one was available or necessary.
6. After a review by David Carp of the Court's file on March 11, 2015, I
found out through David Carp about the alleged "Agreed Final Judgment."
7. I was not a part of any negotiations directed to an agreed final judgment
of which I would be a part of or affected by. And I was not aware of any negotiations
that were in progress.
8. The failure to file the Notice of Appeal by March 23rd was not deliberate
or intentional but was the result of inadvertence, mistake or mischance due to
whether I was represented by counsel, whether I was a party to the suit and what I
consider failure to receive notice of the negotiations regarding the "Agreed Final
Judgment."
2
FURTHER AFFIANT SAYETH NAUGHT.
SUBSCRIBED AND SWORN TO BEFORE ME on thiM ay of April , 2015
to certify which witness my hand and seal of office.
ANN JACOBS
MY COMMISSION EXPIRES
~17,2016
IN THE COURT OF APPEALS
_ _ _ _ _ _ _ JUDICIAL DISTRICT OF TEXAS
HOUSTON, TEXAS
GLENN BECKENDORFF,
Appellant,
v.
CITY OF HEMPSTEAD, TEXAS,
CITIZENS AGAINST THE LANDFILL IN HEMPSTEAD, and
PINTAIL LANDFILL, LLC,
Appellees.
STATE OF TEXAS )
)
COUNTY OF HARRIS )
AFFIDAVIT
BEFORE ME, the undersigned authority, on this day personally
appeared David A. Carp, a person whose identity is known to me, who upon
his oath first administered by me, stated the following:
1. My name is David A. Carp. I am over 21 years of age and am
otherwise fully capable of making this affidavit. I have personal knowledge of
the facts stated in this affidavit, and they are true and correct.
1
!EXHIBIT~
2. I am an attorney duly licensed to practice law in the State of Texas
for over 30 years and am a partner in Herzog & Carp.
3. I was contacted by Floyd Glenn Beckendorff about a lawsuit
involving several Waller County political entities. My understanding was that
a jury verdict had been rendered in December, 2014. Judge Beckendorff had
not run for re-election and thus ceased to be a public official as of December
31, 2014. Judge Beckendorff wanted to be in a position to appeal.
4. I talked to several attorneys associated with the case who
indicated they felt that TRAP 7.2 calls for automatic substitution of public
officers, and that because of Judge Beckendorff's status he was no longer a
party to the suit and that the newly elected county judge had become a party
to the suit in Judge Beckendorff's place.
5. I analyzed the status of the suit and reviewed the court's file. At
this time I found that an "Agreed Final Judgment" had been signed by the trial
court even though Judge Beckendorff apparently had no knowledge or
participation.
6. If Judge Beckendorff is going to have remedies adjudicated
against him in the Judgment, he should not be denied any opportunity
2
allowing due process of appeal or other challenge, which cannot be properly
addressed without this requested extension of time.
FURTHER AFFIANT SAYETH NAUGHT.
SUBSCRIBED AND SWORN TO BEFORE ME on April 3, 2015 to
certify which witness my hand and seal of office.
Notary Public in
State of Texas
ANN JACOBS
MY COMMISSION EXPIRES
Apll 17, 2016
3
EXHIBIT H
LLP
ATTORNEYS AT LAW
May 14, 2015
Mr. David A. Carp Via Fax: (713)781-4797
Herzog & Carp and email: dcarp@hcmlegal.com
427 Mason Park Boulevard
Katy, Texas 77450
Re: Cause No. 14-15-00322; Glenn Beckendorff, in his Offical Capacity as Waller
County Judge, et al. v. Ciy of Hempstead, et al.; in the Fourteenth Court of
Appeals, Houston, Texas.
Mr. Carp,
We have now had a chance to review the record and conduct some additional research
concerning this appeal. This letter will outline the steps we intend to take on behalf of our
clients, the City of Hempstead and CALH.
First, we will file a motion to transfer to the First Court of Appeals. Such a transfer is in
accordance with the First and Fourteenth Courts' local rules. The courts have a good reason for
enacting these rules, and we think they will appreciate us getting the case in the correct court.
Second, we will file a notice to the court that the individuals named in the notices of
appeal are no longer the officials for Waller County. Suits against individuals in their official
capacities are suits against the governmental entity. See City of El Paso v. Heinrich, 284 S.W.3d
366, 373 (Tex. 2009). Recognizing this, the Texas Rules of Appellate Procedure provide for an
automatic substitution of the current officeholder when the officeholder changes. See Tex. R.
App. P. 7.2(a). Accordingly, this appeal by your clients in their official capacities requires that
the current officials be substituted for the current named appellants.
Third, because suits against individuals in their official capacities are suits against the
governmental entity, and your clients were sued in their official capacities, we will file a motion
to show authority. As I understand it, you do not represent Waller County, the governmental
entity against whom this suit was brought, both directly and by suing its officials in their official
capacity.
Fourth, we will be filing a motion to dismiss on three basic grounds .
1. Judge Beckendorff s notice of appeal was not timely. A timely notice of
appeal is a jurisdictional prerequisite. A motion for extension of time may
be filed within 15 days of the date the notice of appeal was due, which I
believe Judge Beckendorff complied with. See Tex. R. App. 26.3.
However, to be a valid motion for extension of time, the motion must
include a reason for the late filing under Rules 26.3 and 10.5(b), as well as
Wortham Tower, Suite 600 I2727 Allen Parkway I Houston, Texas 77019-2 I 33
Telephone (713) 533 -3800 Facsimile (713) 533-3888
www.olsonllp.com
May 14, 2015
David A. Carp
Page 2
the Verburgt v. Dorner line of cases. Judge Beckendorffs motion does
not contain a reasonable explanation for the late filing. As for your other
clients, their notices of appeal are timely only if Judge Beckendorff s is ,
timely. See Tex. R. App. P. 26.l(d).
2. Because the individuals named as your clients are no longer the elected
officials of Waller County, your named clients have no standing to pursue
this appeal. As stated above, a suit against individuals in their official
capacity is a suit against the governmental entity. Because they are no
longer representatives of Waller County, your clients are not proper
parties to this suit.
3. The lawyers representing Waller County and its elected officials signed an
agreed judgment and joined in a motion for entry of that judgment. There
was no indication that Waller County or its elected officials disagreed with
the judgment or intended to appeal any portion of that judgment.
Therefore, the elected officials of Waller County have waived the right to
complain of the agreed judgment on appeal. See Exch., Inc. v. Long., 821
S.W.2d 265, 275 (Tex. App.-Houston [1st Dist.] 1991, writ denied)
("Generally, a party who files a motion for rendition of a judgment waives
its right to complain about that judgment") (citing Litton Indus. Prods.,
Inc. v. Gammage, 668 S.W.2d 319, 322 (Tex. 1984)).
Fifth, and finally, we will file a motion for sanctions on the grounds that this appeal is
frivolous. See Tex. R. App. P. 45. As of now, we have limited the time spent on this matter.
However, to move forward with researching and presenting these motions, and to gather the
necessary documents from the record of the trial court and elsewhere (e.g., the official election
results for the Waller County judge and commissioners) will involve considerable time by us and
our respective staffs. Thus, the attorneys' fees sought as sanctions may be significant. We will
also explore any other appropriate avenue for recovering the attorneys' fees incurred as a result
of this appeal.
Please consider this letter an inquiry for certificate of conference purposes for the
motions to transfer, substitute the correct officials, and to show authority. We will assume
opposition to the motion to dismiss unless you inform me differently. We hope we can have a
productive dialogue about this. To that end, one or the both of us will call you later.
Alternatively, please feel free to call us when you have the opportunity. If we do not hear from
you by Tuesday, May 19, we will assume you are opposed to all the motions mentioned above
and begin preparing the motions for filing.
May 14, 2015
David A. Carp
Page 3
Very truly yours,
Eric C. Farrar
For the City of Hempstead
Blayre Pena
For CALH
EF/lb
cc:
Elton Mathis
Ruhee Leonard
Attorneys for Waller County and its elected officials in their official capacity
EXHIBIT I
NO. 01-15-00523-CV
GLENN BECKENDORFF, IN HIS § IN THE FIRST COURT OF
OFFICIAL CAPACITY AS §
WALLER COUNTY JUDGE, ET. AL §
§ APPEALS
v. §
§
CITY OF HEMPSTEAD AND §
CITIZENS AGAINST THE §
LANDFILL IN HEMPSTEAD § HOUSTON, TEXAS
AFFIDAVIT OF V. BLAYRE PENA
STATE OF TEXAS §
§
COUNTY OF TRAVIS §
BEFORE ME, the undersigned Notary Public on this day, personally
appeared V. Blayre Pefia, known to me to be the person whose name is subscribed
hereto, and after being duly sworn on her oath stated the following:
1. My name is V. Blayre Pefia. I am an attorney and partner with the
law firm Hance Scarborough, LLP. I am a member in good standing with the State
Bar of Texas and have never been subject to any disciplinary action by the State
Bar of Texas. I am of sound mind, over the age of eighteen, have never been
convicted of a felony, and am otherwise competent to make this affidavit.
2. I am the attorney of record for Appellee Citizens Against the Landfill
in Hempstead. I have personal knowledge of the facts stated in this affidavit and in
the foregoing Motion to Dismiss and Motion for Sanctions. I was the lead trial
attorney for CALH resulting in the Agreed Final Judgment the subject of this
appeal, and I was also the lead appellate attorney for CALH related to the pre-trial
appellate proceedings. The facts within this affidavit and the foregoing Motion are
true and correct.
1
3. Exhibit A, B, C, D, E, F, G, and H are true and correct copies.
4. Since 6 April 2015, the date appellant Beckendorff filed his notice of
appeal, I have performed 20 hours of work on this matter, including:
a) Review of the litigation file for this matter;
b) Review of appellants' notice of appeal and appellant Beckendorffs
motion for extension of time;
c) Researching the authority of former elected officials to bring or
defend official capacity suits;
d) Researching elements of the court's jurisdiction, and requirements
for standing and capacity;
e) Preparing and coordinating with counsel for the City of Hempstead
sending the letter explaining the baseless nature of this appeal;
f) Preparing and filing the Motion to Dismiss and Motion for
Sanctions;
g) Conferring with all parties' counsel concerning the various
motions; and
h) Preparing this affidavit in support of damages.
5. Due to the nature of this case and the amount of time spent thus far in
this appeal, it is my opinion that reasonable attorney's fees in this case total at least
$7,500.00. Based on the hour reasonably spent on this appeal thus far, this
represents an hourly rate of $375.00, which is reasonable rate for a civil lawyer
practicing in this area.
6. Should this appeal proceed, additional attorney's fees will be incurred.
In my opinion, given the unusual aspects of this case, the large record from the
underlying trial, and the number of parties, full briefing on the merits will require
an additional 30 hours, minimum, of reasonable and necessary work, depending on
the nature and number of issues raised by appellants. Based on an hourly rate of
$375.00, this represents an additional $11,250.00 in reasonable and necessary
attorney's fees.
7. Should the Court grant oral argument, additional attorney's fees will
be incurred. In my opinion, full preparation for oral argument will require an
additional 20 hours, minimum, of reasonable and necessary work, depending on
the nature and number of issues raised by appellants. Based on an hourly rate of
2
$375.00, this represents an additional $7,500.00 m reasonable and necessary
attorney's fees.
8. My opinions are based upon my training and experience as a lawyer,
and an analysis of various other factors. With regard to my training as a lawyer, I
graduated from the University of Tulsa, School of Law in 2005. I started my
practice in Round Rock with the law firm of Dietz & Jarrard, P.C. In 2009, I
joined the litigation section of Hance Scarborough, LLP. During my career as an
attorney, I have focused my practice almost exclusively on civil litigation. I have
handled multiple cases, both from the plaintiff and defendant sides. I have
provided testimony, previously as an expert witness, in state court and make it a
general practice to keep abreast of the legal fees that are being charged by my
peers and colleagues.
9. I have reviewed the factors in Rule 1.04 of the Texas Rules of
Professional Conduct, as well as Texas Supreme Court precedent of Arthur
Anderson and Chapa. I believe the applicable factors expressed in those cases and
Rule 1.04 supports my opinions. Specifically, I analyzed the time and labor (factor
1) and believe that the time spent by me was required, reasonable and necessary.
10. I am aware of many of the legal rates charged by lawyers in Austin,
Hempstead, and Houston. Based on my discussions with attorneys from the
Hempstead and Waller County area, the fee customarily charged by lawyers in the
locality for similar legal services ranges between $250.00 and $500.00 (factor 3).
This factor also supports the reasonableness and amount of CALH' s request for
fees.
11. As it relates to factor 7, our firm works very hard to maintain a
reputation in the community and to maintain its professional ability at the highest
level. I believe these are appropriate factors to consider in setting a reasonable fee.
In my opinion, the fees and expenses charged in this frivolous appeal would be
customary for any other lawyer of similar experience, reputation, and skill. At all
times, we have attempted to handle these matters in a professional manner, abiding
by the Texas Lawyer's Creed, and striving to prepare a work product that was
commensurate with the sophistication of the case and the expectations of courts in
Waller County and the First Court of Appeals. It is my opinion that we met the
level of skill necessary to handle this case.
3
12. I do not believe the other factors in Rule 1.04 affect the analysis on
the reasonableness of the fees sought by CALH.
13. Based upon all these factors, I believe the fees incurred by CALH in
filing the motion to dismiss and motion for sanctions, as well as anticipated fees
should the appeal not be dismissed, are reasonable and necessary.
FURTHER AFFIANT SAYTH NOT.
SWORN TO AND SUBSCRIBED before me by V. Blayre Pena on this
18th day of June, 2015, to certify which witness my hand and seal of office.
MARY PICKETT
WI COMMISSION EXPIRES
July 29, 2016
4