Comes now Citizens Against the Landfill in Hempstead (CALH), the City of Hempstead, and Waller County (collectively “Appellees”) and file this Response to

Appellants’ Motion for Extension of Time to Respond to Motions. Appellees

would respectfully ask that Motion for an Extension of Time be denied and in

support of this request would show unto the Honorable First Court of Appeals the

following:

There are currently six motions pending before this Court related to the frivolous appeal of the former County Judge Glenn Beckendorff and former

Commissioners Stan Kitzman and Frank Pokluda. Those motions are as follows:

1) City of Hempstead’s Motion to Show Authority filed on June 5, 2015; 2) City of Hempstead’s Notice of Automatic Substitution filed on June 5, 2015;

3) City of Hempstead’s Motion for Damages filed on June 5, 2015; 4) City of Hempstead’s Motion to Dismiss filed on June 8, 2015; 5) Waller County’s Motion to Dismiss filed on June 12, 2015; and 6) Citizens Against the Landfill in Hempstead’s Motion to Dismiss and Motion for Sanctions filed on June 18, 2015 (hereinafter collectively the “Motions”).

On June 15, 2015, Appellants filed their first motion for extension of time to respond to the motions filed by the City of Hempstead. The basis for the

Appellants’ motion was that they needed the record to respond to the motions and

the record had not been filed yet. The Appellants’ requested a deadline of thirty

days from the date the record was filed. That same day, the City of Hempstead

filed a response objecting to the request for extension. The City of Hempstead

pointed out in its response that the record was not necessary to respond to the focus

of its motions, which was that Appellants were no longer elected officials and

lacked standing to pursue the appeal.

On June 19, 2015, the Honorable Michael Massengale, acting individually, ordered Appellants to file their responses to the Motions by no later than Monday,

June 29, 2015. The Court went on to state that “any request for an extension

beyond this date must explain with particularity the reasons why the clerk’s

record is needed to respond to the Motions” (bold emphasis in original).

On June 29, 2015, Appellants filed their second motion for extension of time to respond to all motions, except the Motion to Show Authority. Contrary to the

requirements of TRAP 10.5(b)(1)(D), in the text of the motion, Appellants did not

notify the Court that it was its second request and that the previous requests had

been granted in part. Furthermore, Appellants did not state with particularity the

reasons why the record was necessary to respond to the Motions. The only

statement arguably responsive to this requirement was that counsel for Appellant

was not the trial counsel. The motion went on to state, “we very much feel it is our

responsibility to have an opportunity to review the over 12,000 pages of the

records that were filed to properly represent the Appellants and be able to respond

to the underlying motions.” This statement is severely lacking.

As noted by the City of Hempstead in its response to the first request for extension, nothing in the record will assist counsel for Appellants in explaining

how or why former elected officials have standing or capacity to bring an appeal

when they were not parties at the time the judgment was entered. Nothing in the

record will add clarity to what specific legal remedies were allegedly adjudicated

against Appellants when counsel for Appellants has already admitted he reviewed

the judgment. The only alleged remedies adjudicated against Appellants would be

found in the agreed final judgment, and no testimony or prior pleadings in the

record will affect what appears on the face of that judgment. Lastly, nothing in the

record will justify how former elected officials filing an appeal “in their official

capacity,” which no longer exists, is in good faith.

While counsel for Appellants claims this is a complex appeal, counsel fails to articulate any specifics to justify that statement or to justify why responding to

the City of Hempstead’s, Waller County’s, and CALH’s Motions would be

complex. The only potential complexity to this appeal has been self created by

Appellants whereby persons who do not have standing are seeking to defeat a

judgment which all parties agreed to at the trial court. To pull that off would

require mental gymnastics that are not supported by legal precedent. Further, even

if the appeal were complex, the issue of standing and the appellate Court’s

jurisdiction to hear the appeal are preliminary matters that do not implicate the

merits. See Whitworth v. Whitworth , 222 S.W.3d 616, 640 (Tex. App. – Houston

[1st Dist.] 2007)(“Dismissal for lack of subject matter jurisdiction does not decide

the merits of the case.”).

“A party’s standing to seek relief is a question of law. . . .” In re McDaniel , 408 S.W.3d 389, 397 (Tex. App. – Houston [1st Dist.] 2011, no pet. h.). In the

court’s review of standing, it must take as true all evidence favorable to the

challenged party. Id . Here, the evidence on this issue is undisputed and comes

directly from Appellants in the form of the motions and affidavits they filed in this

proceeding. Specifically, the affidavits of Glenn Beckendorff and Stan Kitzman

attached to Appellants’ Response to Hempstead’s Motion to Show Authority filed

on June 29, 2015 make it clear that Appellants were no longer in office after

December 31, 2014. Further, the Agreed Final Judgment was entered when

Appellants were no longer in office.

The fact that an official capacity suit is another way of pleading a suit against the governmental entity, and not the individual, is black letter law as

discussed in Appellees’ Motions. Because no extension of time will allow

Appellants to find one case which states to the contrary, Appellants’ request for an

extension of time is futile and should be denied.

For all the foregoing reasons, Appellees respectfully requests this Court to 1) deny Appellants’ Second Request for Extension of Time to Respond to Motions,

2) grant the relief sought by Appellees in their Motions, and 3) grant such further

relief to which Appellees may be entitled at law or in equity.

Respectfully Submitted, H ANCE S CARBOROUGH , 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 *7 W ALLER C OUNTY C RIMINAL D ISTRICT A TTORNEY ’ S O FFICE 645 12th Street Hempstead, TX 77445 Telephone: (979)826-7718 Facsimile: (979)826-7722 By: /s/ Elton R. Mathis, Jr.

Elton R. Mathis, Jr.

State Bar No. 24014568 e.mathis@wallercounty.us ATTORNEYS FOR APPELLEES WALLER COUNTY AND ITS ELECTED OFFICIALS IN THEIR OFFICIAL CAPACITY

O LSON & O LSON , LLP Wortham Tower, Suite 600 2727 Allen Parkway Houston, Texas 77019 Telephone: (713)533-3800 Facsimile: (713)533-3888 By: /s/ Eric C. Farrar Eric C. Farrar State Bar No. 24036549 efarrar@olsonllp.com ATTORNEYS FOR APPELLEE CITY OF HEMPSTEAD *8 CERTIFICATE OF SERVICE I certify that on July 8, 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

dcarp@hcmlegal.com terryflenniken@gmail.com

H ERGZOG & C ARP 506th Judicial District Court

427 Mason Park Boulevard 403 West Alamo Street,

Katy, Texas 77450 Brenham, Texas 77833

Facsimile: (512) 781-4797 Telephone: (979)251-2760

Attorneys for Appellants Facsimile: (979) 277-0030

Eric C. Farrar Brent W. Ryan

efarrar@olsonllp.com bryan@msmtx.com

Art Pertile M C E LROY , S ULLIVAN , M ILLER ,

apertile@olsonllp.com W EBER , & O LMSTEAD , LLP

O LSON & O LSON , LLP P.O. Box 12127

Wortham Tower, Suite 600 Austin, Texas 78711

2727 Allen Parkway Telephone: (512) 372-8111

Houston, Texas 77019 Facsimile: (512)327-6566

Telephone: (713)533-3800 Attorney for Pintail Landfill, LLC

Facsimile: (713)533-3888

Attorneys for Appellee Michael S. Truesdale

City of Hempstead mike@truesdalelaw.com

L AW O FFICE OF M ICHAEL S. T RUESDALE , Elton Mathis, Jr. PLLC

e.mathis@wallercounty.us 801 West Avenue, Suite 201

W ALLER C OUNTY D ISTRICT A TTORNEY Austin, Texas 78701

Ruhee G. Leonard Telephone: (512)482-8671

r.leonard@wallercounty.us Facsimile: (866)847-8719

Assistant District Attorney Attorney for Pintail Landfill, LLC

645 12 th Street

Hempstead, Texas 77445

Facsimile (919) 826-7722

Attorneys for Waller County

/s/ V. Blayre Peña V. Blayre Peña