                                                                                      ACCEPTED
                                                                                  14-15-00322-CV
                                                                  FOURTEENTH COURT OF APPEALS
                                                                               HOUSTON, TEXAS
                                                                             6/3/2015 11:21:22 AM
                                                                            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   6/3/2015 11:21:22 AM
                    AT HOUSTON, TEXAS           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, et. al.,

                                                      Appellees
_____________________________________________________________

  On Appeal from the 506TH Judicial District Court of Waller County,
                               Texas
               Honorable Terry Flenniken, Presiding


      MOTION TO TRANSFER TO FIRST COURT OF APPEALS
  ______________________________________________________________

TO THE HONORABLE FOURTEENTH COURT OF APPEALS:

      Pursuant to Local Rule 1.5, Appellees, the City of Hempstead,

Citizens Against the Landfill in Hempstead, and Waller County move for the

Court to transfer this case to the First Court of Appeals.

      The underlying case in this appeal, Cause No. 13-03-21872, City of

Hempstead, Texas, and Citizens Against the Landfill in Hempstead (CALH),

v. Waller County, Texas, Waller County Judge Glenn Beckendorff, Waller
County Commissioner Frank Pokluda, Waller County Commissioner Stan

Kitzman, Waller County Commissioner Jeron Barnett, and Waller County

Commissioner John Amsler, In Their Official Capacities, in the 506th

District Court of Waller County, Texas, gave rise to two related proceedings,

as that term is defined by Local Rule 1.1(b), both of which were assigned

and determined by the First Court of Appeals. There was an interlocutory

appeal, see Exhibits A and B (Opinion and Judgment from the First Court of

Appeal in No. 01-14-00946-CV) and an original proceeding, see Exhibit C

(First Court’s order denying petition for writ of mandamus in No. 01-14-

00916-CV).

      The parties therefore pray that this Court transfer the case to the First

Court of Appeals.

                                             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
                                             CITY OF HEMPSTEAD
/s/ V. Blayre Pena
V. Blayre Pena
Hance Scarborough, LLP
400 W. 15th Street, Suite 950
Austin, Texas 78701
Facsimile (512) 482-6891
E-Mail: bpena@hslawmail.com

ATTORNEYS FOR APPELLEE
CALH

/s/ Elton R. Mathis, Jr.
Elton R. Mathis, Jr.
Waller County Criminal
District Attorney
645 12th Street
Hempstead, Texas 77445
Facsimile: (979) 826-7722

/s/ Ruhee G. Leonard
Ruhee G. Leonard
Waller County Criminal
District Attorney
645 12th Street
Hempstead, Texas 77445
Facsimile: (979) 826-7722

ATTORNEYS FOR APPELLEE
WALLER COUNTY AND ITS
ELECTED OFFICALS IN THEIR
OFFICAL CAPACITY
                                            /s/ David A. Carp
                                            David A. Carp
                                            Herzog & Carp
                                            427 Mason Park Boulevard
                                            Katy, Texas 77450
                                            Facsimile (713) 781-4797

                                            ATTORNEYS FOR APPELLANTS


                                            /s/ Brent W. Ryan
                                            Brent W. Ryan
                                            McElroy, Sullivan, Miller,
                                            Weber & Olmstead, L.L.P.
                                            P.O. Box 12127
                                            Austin, Texas 78711
                                            Facsimile (512) 327-6566

                                            ATTORNEYS FOR APPELLEE
                                            PINTAIL LANDFILL, LLC




                  CERTIFICATE OF CONFERENCE

      The parties who have not signed this motion were contacted by the
undersigned, most recently via email on the afternoon of June 2, 2015.
Counsel for appellants is not opposed. Counsel for Pintail Landfill, LLC was
contacted via email on May 22, 2015, but did not state whether Pintail was
opposed or not. Counsel for Pintail did not respond to the email on June 2,
and therefore it is not known whether Pintail opposes the transfer or not.

                                            /s/ Eric C. Farrar
                                            Eric C. Farrar
                     CERTIFICATE OF SERVICE

      I hereby certify that on June 3, 2015 this Joint Motion to Transfer was
served on counsel for all parties via eservice:

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
dcarp@hcmlegal.com                         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
Opinion issued November 26, 2014




                                   In The

                          Court of Appeals
                                   For The

                      First District of Texas
                         ————————————
                          NO. 01-14-00946-CV
                        ———————————
                 WALLER COUNTY, TEXAS
                          AND
 COUNTY JUDGE GLENN BECKENDORFF, COMMISSIONER FRANK
   POKLUDA, COMMISSIONER STAN KITZMAN, COMMISSIONER
 JERON BARNETT, AND COMMISSIONER JOHN AMSLER, IN THEIR
       OFFICIAL CAPACITIES AS THE WALLER COUNTY
             COMMISSIONERS COURT, Appellants
                                     V.
                CITY OF HEMPSTEAD, TEXAS
                          AND
   CITIZENS AGAINST THE LANDFILL IN HEMPSTEAD, Appellees


                 On Appeal from the 506th District Court
                          Waller County, Texas
                    Trial Court Case No. 13-03-21872




                            EXHIBIT A
                                        OPINION

       Appellants Waller County, Texas and its Commissioners Court consisting of

County Judge Glenn Beckendorff and County Commissioners Frank Pokluda, Stan

Kitzman, Jeron Barnett, and John Amsler, all acting in their official capacities

(collectively, Waller County), filed a notice of interlocutory appeal. The County

attempts to invoke our jurisdiction by asserting that the trial court denied a motion

for summary judgment on jurisdictional grounds and thereby effectively denied its

plea to the jurisdiction. See TEX. CIV. PRAC. & REM. CODE § 51.014(a)(8) (West.

Supp. 2014). Appellees, the City of Hempstead and Citizens Against the Landfill

in Hempstead (CALH) contest jurisdiction and have moved to dismiss the appeal.

       Because the procedural circumstances of this case do not demonstrate that

any ruling of the trial court has resolved the County’s jurisdictional challenge in

the trial court and thereby effectively denied a plea to the jurisdiction, we dismiss

the appeal.

                                        Background

       The City of Hempstead filed suit against Waller County, and CALH

intervened as a plaintiff. The lawsuit challenges the County’s authority to prohibit

the disposal of solid waste in certain areas of the County, by way of an ordinance

relating to the proposed creation of a landfill on a site that partially overlaps the

City’s extraterritorial jurisdiction.



                                            2
      Waller County filed both a plea to the jurisdiction and a motion for partial

summary judgment on no-evidence and traditional grounds. In the no-evidence

portion of the summary-judgment motion, the County argued, among other things,

that there was no evidence to support a claim that the challenged ordinance was

enacted without authority so as to invoke the district court’s “general supervisory

control” over the commissioners court. See TEX. CONST. art. V, § 8.

      The trial court entered an order denying Waller County’s motion for

summary judgment, and it has not expressly ruled on the plea to the jurisdiction. At

the conclusion of a hearing on the matter, the trial court explained that it was

reserving its ruling on the jurisdictional challenge, stating:

      The Court finds that the pleas to the jurisdiction by the defendants are
      not ripe for ruling and rather than conduct an evidentiary hearing and
      a trial on the merits to ascertain and determine the facts, the Court
      finds that judicial economy dictates proceeding with jury selection
      and presentation of evidence commencing on December the 1st, 2014.
      The Court will make a ruling at the appropriate time.

This Court has denied a mandamus petition which sought to compel a pretrial

ruling on the jurisdictional plea, In re Waller Co., No. 01-14-00916-CV (Tex.

App.—Houston [1st Dist.] Nov. 21, 2014), and a similar petition has been filed

with the Supreme Court of Texas.

      After we denied the mandamus petition, Waller County filed its notice of

interlocutory appeal from the denial of its motion for summary judgment, which it

characterizes as having effectively denied the plea to the jurisdiction. The


                                           3
appellees filed a motion to dismiss the appeal for want of interlocutory appellate

jurisdiction, and the County has filed a response to that motion.

                                       Analysis

      An immediate appeal may be taken from an interlocutory order of a district

court that grants or denies a plea to the jurisdiction by a governmental unit. TEX.

CIV. PRAC. & REM. CODE § 51.014(a)(8). Waller County asserts that it is entitled to

an interlocutory appeal and automatic stay of trial proceedings, see id. § 51.014(b)

& (c), because the denial of its motion for summary judgment, which raised

jurisdictional issues similar to those in the plea to the jurisdiction, implicitly or

effectively denied the jurisdictional plea.

      The mandamus record previously filed and expressly relied upon by the

County in its attempt to demonstrate appellate jurisdiction instead shows that the

trial court has not ruled on the jurisdictional issues raised in the plea to the

jurisdiction. The trial court expressly refused to rule on the issues raised in the plea

to the jurisdiction on the basis that such issues were not ripe. The record

independently supports the trial court’s oral characterization of its rulings, because

the motion for summary judgment could have been denied due to the existence of

genuine issues of material fact, without resolving the merits of the jurisdictional

plea. Put another way, if we were to exercise interlocutory jurisdiction over this

appeal and affirm the trial court’s ruling because of genuine issues of material



                                              4
jurisdictional facts, Waller County would still be free to assert its jurisdictional

challenge based on the resolution of the disputed fact issues. Thus we cannot infer

a denial of the jurisdictional plea from the denial of the motion for summary

judgment.

      Waller County relies upon Thomas v. Long, 207 S.W.3d 334, 339 (Tex.

2006), and Lazarides v. Farris, 367 S.W.3d 788, 796–97 (Tex. App.—Houston

[14th Dist.] 2012, no pet.), for the proposition that an order denying a motion for

summary judgment in which the movant challenges the trial court’s jurisdiction is

eligible for an interlocutory appeal. We find both cases to be distinguishable.

      In Thomas, the record on appeal did not include an order explicitly denying

a plea to the jurisdiction, but it did include a motion for summary judgment

challenging the trial court’s subject matter jurisdiction. Thomas, 207 S.W.3d at

338–39. The Supreme Court held that Section 51.014(a)(8) provided for an

interlocutory appeal when a trial court denies a governmental unit’s challenge to

subject matter jurisdiction, irrespective of the procedural vehicle used. Id. at 339.

Although the trial court did not explicitly deny the relief sought in the defendant’s

motion for summary judgment challenging the trial court’s jurisdiction, it did

affirmatively grant relief to the plaintiff on claims that were subject to those

jurisdictional challenges. Accordingly, the Supreme Court concluded that “the trial

court’s rulings on the merits of some claims for which [defendant] argued the trial



                                          5
court lacked subject matter jurisdiction constitute an implicit rejection of

[defendant’s] jurisdictional challenges.” Id. Unlike Thomas, there has been no

ruling by the trial court in this case on the merits of the appellees’ claims from

which it could be implied that Waller County’s jurisdictional arguments had been

rejected.

       In Lazarides, the appellant filed a plea to the jurisdiction and a motion for

summary judgment asserting various jurisdictional challenges. Lazarides, 367

S.W.3d at 795. Although the trial court did not expressly grant or deny the

appellant’s plea to the jurisdiction, it denied the summary judgment motion. Id. at

796. Following Thomas, the Fourteenth Court held that “[w]hen the record does

not contain an order granting or denying a plea to the jurisdiction, but does include

an order denying a motion for summary judgment in which the movant challenged

the trial court’s jurisdiction, an interlocutory appeal may be taken under

subsection (a)(8) irrespective of the selected procedural vehicle.” Id. at 797–98

(citing Thomas, 207 S.W.3d at 339). Unlike Lazarides, the trial court in this case

explicitly stated, and the record confirms, that the denial of the County’s motion

for summary judgment did not imply an adverse ruling on the jurisdictional issues.

Instead, the issues remain before the trial court pending resolution of the disputed

jurisdictional facts.




                                         6
      Finally, the jurisdictional challenges in Thomas and Lazarides appear to

have been raised in traditional motions for summary judgment. Although a trial

court’s jurisdiction may be challenged in a traditional motion for summary

judgment, the record in this case demonstrates that Waller County’s alleged

jurisdictional arguments only were raised in the no-evidence portion of its motion

for summary judgment. But this court has previously held that “a court’s subject-

matter jurisdiction cannot be challenged in a no-evidence motion for summary

judgment.” Green Tree Servicing, LLC v. Woods, 388 S.W.3d 785, 794 (Tex.

App.—Houston [1st Dist.] 2012, no pet.); accord Thornton v. Northeast Harris

County MUD 1, No. 14-13-00890-CV, 2014 WL 3672897, at *11 (Tex. App.—

Houston [14th Dist.] July 24, 2014, pet. filed). Accordingly, no denial of a

jurisdictional plea can be inferred from the denial of a no-evidence summary

judgment argued on jurisdictional grounds.

                                   Conclusion

      Because the trial court did not rule on the plea to jurisdiction (either

expressly or implicitly through its denial of Waller County’s motion for summary

judgment), we lack jurisdiction over this purported interlocutory appeal. We grant

the appellees’ motions and dismiss the appeal for want of jurisdiction. See TEX. R.

APP. P. 42.3(a). CALH’s request for sanctions in the event that the appeal is not




                                        7
dismissed before December 1, 2014 is dismissed as moot. The Clerk is directed to

issue the mandate immediately. See TEX. R. APP. P. 18.1(c).




                                            Michael Massengale
                                            Justice

Panel consists of Justices Jennings, Massengale, and Brown.




                                        8
                                    JUDGMENT

                                 Court of Appeals
                            First District of Texas
                                  NO. 01-14-00946-CV

                   WALLER COUNTY, TEXAS
                            AND
COUNTY JUDGE GLENN BECKENDORFF, COMMISSIONER FRANK POKLUDA,
 COMMISSIONER STAN KITZMAN, COMMISSIONER JERON BARNETT, AND
 COMMISSIONER JOHN AMSLER, IN THEIR OFFICIAL CAPACITIES AS THE
        WALLER COUNTY COMMISSIONERS COURT, Appellants

                                            V.

                      CITY OF HEMPSTEAD, TEXAS
                                AND
         CITIZENS AGAINST THE LANDFILL IN HEMPSTEAD, Appellees

   Appeal from the 506th District Court of Waller County (Tr. Ct. No. 13-03-21872)

      After inspecting the record of the court below, it is the opinion of this Court that it
has no jurisdiction over the appeal. It is therefore CONSIDERED, ADJUDGED, and
ORDERED that the appeal be dismissed.

The Court orders that this decision be certified below for observance.

Judgment rendered November 26, 2014.

Judgment rendered by panel consisting of Justices Jennings, Massengale, and Brown.



                                     EXHIBIT B
Opinion issued November 21, 2014




                                   In The

                          Court of Appeals
                                   For The

                      First District of Texas
                        ————————————
                          NO. 01-14-00916-CV
                        ———————————
    IN RE WALLER COUNTY, TEXAS, WALLER JUDGE GLENN
   BECKENDORFF, WALLER COUNTY COMMISSIONER FRANK
  POKLUDA, WALLER COUNTY COMMISSIONER STAN KITZMAN,
    WALLER COUNTY COMMISSIONER JERON BARNETT, AND
   WALLER COUNTY COMMISSIONER JOHN AMSLER, IN THEIR
        OFFICIAL CAPACITIES AS THE WALLER COUNTY
               COMMISSIONERS COURT, Relators



          Original Proceeding on Petition for Writ of Mandamus




                            EXHIBIT C
                          MEMORANDUM OPINION

      Relators’ petition for writ of mandamus is denied.* We dismiss all pending

motions, including relators’ emergency motion for stay, as moot.

                                  PER CURIAM
Panel consists of Justices Jennings, Massengale, and Brown.




*
      The underlying case is City of Hempstead, Texas and Citizens Against the Landfill
      in Hempstead v. Waller County, Texas, County Judge Glenn Beckendorff,
      Commissioner Frank Pokluda, Commissioner Stan Kitzman, Commissioner Jeron
      Barnett, Commissioner John Amsler, and Pintail Landfill, L.L.C., cause number
      13-03-21872, pending in the 506th District Court of Waller County, Texas, the
      Hon. Terrill L. Flenniken presiding.

                                          2
