Case Information
*0 FILED IN 14th COURT OF APPEALS HOUSTON, TEXAS 6/5/2015 4:08:52 PM CHRISTOPHER A. PRINE Clerk *1 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
_____________________________________________________________ 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 506 TH Judicial District Court of Waller County, Texas Honorable Terry Flenniken, Presiding MOTION TO SHOW AUTHORITY ______________________________________________________________ TO THE HONORABLE FIRST OR FOURTEENTH [1] 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.
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
*3 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 *6 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 *7 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 820 13 th Street
427 Mason Park Boulevard
Katy, Texas 77450 P.O. Box 966
Facsimile (713) 781-4797 Hempstead, Texas 77445
Facsimile (979) 826-6637 E-Mail: Attorney for Appellant
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 400 W. 15 th Street, Suite 950
Weber & Olmstead, L.L.P.
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 12 th 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 *8 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 506 TH 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
[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.
[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.