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
14-15-00322-CV
FOURTEENTH COURT OF APPEALS
HOUSTON, TEXAS
6/5/2015 4:08:52 PM
CHRISTOPHER PRINE
CLERK
NO. 14-15-00322-CV
_____________________________________________________________
FILED IN
14th COURT OF APPEALS
IN THE COURT OF APPEALS HOUSTON, TEXAS
FOR THE FOURTEENTH DISTRICT OF TEXAS 6/5/2015 4:08:52 PM
AT HOUSTON, TEXAS CHRISTOPHER A. PRINE
_____________________________________________________________
Clerk
GLENN BECKENDORFF, IN HIS OFFICIAL CAPACITY AS
WALLER COUNTY JUDGE
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
Honorable Terry Flenniken, Presiding
MOTION TO SHOW AUTHORITY
______________________________________________________________
TO THE HONORABLE FIRST OR FOURTEENTH1 COURT OF APPEALS:
Appellee, the City of Hempstead, Texas files this motion to show authority
pursuant to Rule 12 of the Texas Rules of Civil Procedure.
1
Pursuant to the courts’ local rules, this case should have been assigned to the First Court of
Appeals. A motion to transfer was filed 3 June 2015.
I. Background
Appellants, 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, appeal from the trial court’s judgment signed 20 February 2015.
In the underlying lawsuit, the parties were as follows:
Plaintiff: City of Hempstead
Plaintiff-Intervenor: Citizens Against the Landfill in Hempstead (“CALH”)
Defendants: Waller County; Glenn Beckendorff, in his official capacity as Waller
County Judge; Frank Pokluda, in his official capacity as Waller County
Commissioner; Stan Kitzman, in his official capacity as Waller County
Commissioner; Jeron Barnett, in his official capacity as Waller County
Commissioner; John Amsler, in his official capacity as Waller County
Commissioner; and Pintail Landfill, LLC.
After a jury trial, the parties entered into a settlement agreement that included an
agreed judgment. All parties moved for the trial court to enter the agreed judgment.
At the time the trial court entered judgment, Beckendorff, Pokluda, and Kitzman, had
been succeeded in office by the current Waller County elected officials. See Exhibit
A (Copy of the Waller County website listing its elected officials). 2
The trial court entered judgment on 20 February 2015. Exhibit B. A timely
filed motion for new trial was not filed. Beckendorff filed his notice of appeal more
2
The City of Hempstead requests this Court take judicial notice of the elected officials. The
facts are generally known within the trial court’s territorial jurisdiction.
than 30 days later on 6 April 2015. Exhibit C. Kitzman and Pokluda filed their
notices of appeal on 15 April 2015. Exhibit D.
II. Motion to Show Authority.
Texas Rule of Civil Procedure provides: “A party in a suit or proceeding
pending in a court of this state may, by sworn written motion stating that he believes
the suit or proceeding is being prosecuted or defended without authority, cause the
attorney to be cited to appear before the court and show his authority to act.” Tex. R.
Civ. P. 12. The City of Hempstead is a party to this appeal. This appeal is a
proceeding in a court in this state. The City of Hempstead, through its attorney,
believes that this appeal is being prosecuted without authority by the proper
appellants, as more fully explained below.
III. Appellants lack standing because they are no longer the elected officials of
Waller County, and therefore, have no authority to hire counsel to
prosecute this appeal.
A suit against a governmental official in his official capacity is another way of
pleading a suit against the governmental entity. City of El Paso v. Heinrich, 284
S.W.3d 366, 373 (Tex. 2009) (citing Brandon v. Holt, 469 U.S. 464, 471–72, 105 S.
Ct. 873 (1985) (“[A] judgment against a public servant ‘in his official capacity’
imposes liability on the entity that he represents provided, of course, the public entity
received notice and an opportunity to respond.”); Tex. A & M Univ. Sys. v. Koseoglu,
233 S.W.3d 835, 844 (Tex.2007) (“It is fundamental that a suit against a state official
is merely ‘another way of pleading an action against the entity of which [the official]
is an agent.’ ”) (quoting Kentucky v. Graham, 473 U.S. 159, 165, 105 S. Ct. 3099
(1985)).
When a public officer is a party in an official capacity to an appeal or
original proceeding, and if that person ceases to hold office before the
appeal or original proceeding is finally disposed of, the public
officer's successor is automatically substituted as a party if
appropriate. Proceedings following substitution are to be in the name
of the substituted party, but any misnomer that does not affect the
substantial rights of the parties may be disregarded. Substitution may
be ordered at any time, but failure to order substitution of the
successor does not affect the substitution.
Tex. R. App. 7.2(a) (“Automatic Substitution of Officer”); see Abbott v. G.G.E,
03-11-00338-CV, 2015 WL 1968262, at *1 n.1 (Tex. App.—Austin Apr. 30, 2015,
no. pet. h.) (automatic substitution of successors to “former Governor,
Commissioners of HHSC and DADS, and the former Directors of the Austin and
Mexia SSLCs”); City of Houston v. Strouse, No. 14-10-00239-CV, 2011 WL
304185, at *1 n.1 (Tex. App.—Houston [14th Dist.] Jan. 27, 2011, no pet.) (mem.
op.) (automatic substitution of newly appointed chief of police in suit against
former chief in his official capacity).
Because this suit was against the officials in their official capacity, it was a suit
against Waller County. An appeal by the officials in their official capacities is
likewise an appeal by Waller County. Waller County is represented by its District
Attorney, Elton Mathis, not by appellants’ counsel, David Carp. David Carp has no
authority to act on behalf of Waller County or its elected officials in their official
capacity.
PRAYER
Appellee, City of Hempstead, requests this court require Appellants’ counsel
show authority to act on behalf of Waller County or its elected officials, as opposed
to the former officials, who have no standing or authority to bring this suit. If this
Court determines an evidentiary hearing is required, the City of Hempstead prays this
Court instruct the trial court to give notice, hold a hearing on the issue, and enter an
order that this Court could then review.
Respectfully submitted,
OLSON & OLSON, L.L.P.
By: /s/ Eric C. Farrar
Eric C. Farrar
State Bar No. 24036549
efarrar@olsonllp.com
Wortham Tower, Suite 600
2727 Allen Parkway
Houston, Texas 77019
Telephone: (713) 533-3800
Facsimile: (713) 533-3888
ATTORNEYS FOR APPELLEE
CERTIFICATE OF CONFERENCE
The undersigned conferred all appellate counsel of record as follows:
David Carp, counsel for appellants – letter faxed and emailed on 15 May; email on 3
June. Counsel for appellants has not indicated whether appellants oppose this motion
or not.
Brent Ryan, counsel for Pintail Laindfill, LLC – email on 3 June and phone call on 5
June. Counsel for Pintail has not indicated whether Pintail opposes this motion or
not.
Elton Mathis, counsel for Waller County, county judge, in his official capacity, and
county commissioners, in their official capacities, indicated that he agrees to the
relief sought in this motion.
Blayre Pena, counsel for CALH, indicated that CALH agrees to the relief requested.
/s/ Eric C. Farrar
Eric C. Farrar
CERTIFICATE OF SERVICE
I hereby certify that June 5, 2015 a true and correct copy of the foregoing
Notice of Appearance of Appellate Counsel for Appellee was served via:
David A. Carp Ms. Carol Chaney
Herzog & Carp Law Office of Carol A. Chaney
427 Mason Park Boulevard 820 13th Street
Katy, Texas 77450 P.O. Box 966
Facsimile (713) 781-4797 Hempstead, Texas 77445
Facsimile (979) 826-6637
Attorney for Appellant E-Mail:
carol.chaney@thechaneyfirm.net
Attorneys for Citizens
Against the Landfill in Hempstead
Mr. Brent W. Ryan Ms. V. Blayre Pena
McElroy, Sullivan, Miller, Hance Scarborough, LLP
Weber & Olmstead, L.L.P. 400 W. 15th Street, Suite 950
P.O. Box 12127 Austin, Texas 78701
Austin, Texas 78711 Facsimile (512) 482-6891
Facsimile (512) 327-6566 E-Mail: bpena@hslawmail.com
E-Mail: bryan@msmtx.com
Attorneys for Citizens
Attorney for Pintail Landfill, LLC Against the Landfill in Hempstead
Elton R. Mathis, Jr.
Waller County District Attorney
Ruhee G. Leonard
Assistant District Attorney
645 12th Street
Hempstead, Texas 77445
Facsimile: (979) 826-7722
E-Mail: e.mathis@wallercounty.us
Attorney for Waller County,
Texas
/s/ Eric C. Farrar
Eric C. Farrar
EXHIBIT A
NO. 14-15-00322-CV
_____________________________________________________________
IN THE COURT OF APPEALS
FOR THE FOURTEENTH DISTRICT OF TEXAS
AT HOUSTON, TEXAS
_____________________________________________________________
GLENN BECKENDORFF, IN HIS OFFICIAL CAPACITY AS
WALLER COUNTY JUDGE
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
Honorable Terry Flenniken, Presiding
UNSWORN DECLARATION OF ERIC C. FARRAR
______________________________________________________________
My name is Eric Clayton. Farrar, my date of birth is 30 October 1970, and
my address is 1304 W. Gray St., #527, Houston, Texas, 77019, United States of
America. I declare under penalty of perjury that the following statements are true
and correct.
Pursuant to Texas Rule of Civil Procedure 12, I believe that this appeal is
being prosecuted without authority. The facts that support this belief are:
1. Appellant Beckendorff appeals from a suit against him in his official
capacity. But appellant Beckendorff stated, in his affidavit accompanying his
motion for extension of time to file a notice of appeal, that he is no longer the
county judge.
2. The underlying suit was brought against Waller County and its
officials, in their official capacity. On 4 June 2015, this Court granted a motion for
substitution of counsel for Elton Mathis, the Waller County District Attorney, to
substitute as counsel for Waller County and its elected officials.
3. Waller County’s website listing its County Judge and County
Commissioners does not list the named appellants. Exhibit A to this motion is a
true and correct copy of the Waller County Website page showing the County
Judge and County Commissioners, accessed and printed on 4 June 2015.
4. Because Appellants are not elected officials of Waller County, they
have no authority to hire counsel to represent either Waller County or its officials,
in their official capacity.
5. Exhibit A is a true and correct copy of a printout of Waller County’s
website.
6. Exhibit B is a true and correct copy of the agreed judgment in this
cause.
7. Exhibit C is a true and correct copy of appellant Beckendorff’s notice
of appeal.
8. Exhibit D is a true and correct copy of appellants Kitzman and
Pokluda’s notice of appeal.
Executed in Harris County, State of Texas, on the 5th day of June, 2015.
/s/ Eric C. Farrar
Eric C. Farrar
Declarant