Opinion issued June 23, 2016




                                 In The

                           Court of Appeals
                                For The

                       First District of Texas
                          ————————————
                           NO. 01-15-00523-CV
                         ———————————
 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, Appellants
                                   V.
       CITY OF HEMPSTEAD, TEXAS, CITIZENS AGAINST THE
        LANDFILL IN HEMPSTEAD, PINTAIL LANDFILL, LLC,
             AND WALLER COUNTY, TEXAS, Appellees


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


                               OPINION
      This is an attempted appeal from an agreed final judgment against Waller

County and its commissioners court. The putative appellants held positions on

commissioners court at the time of trial, but after a jury rendered its verdict, their

terms expired and they were replaced in office. Subsequently, the case was settled

by their successors, and the trial court signed a final judgment. Dissatisfied with the

settlement, the former officials then filed notices of appeal, purportedly in their

official capacities associated with the offices they formerly held.

      Because the former officials lack the official capacity that they claim for

purposes of appealing the judgment, we dismiss the appeal.

                                     Background

      The City of Hempstead filed suit against Waller County and the members of

the Waller County Commissioners Court, each individually named but sued only in

their official capacities. The dispute related to the proposed creation of a landfill on

a site that partially overlaps the city’s extraterritorial jurisdiction.1 Pintail Landfill

LLC, the waste disposal company engaged to construct and operate the landfill, was

named as a co-defendant, and Citizens Against the Landfill in Hempstead (“CALH”)

intervened as a plaintiff. At the time the suit was filed and during the ensuing trial,



1
      We previously decided a pretrial interlocutory appeal arising from this case.
      See Waller County v. City of Hempstead, 453 S.W.3d 73, 74 (Tex. App.—
      Houston [1st Dist.] 2014, pet. denied).


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Glen Beckendorff served as Waller County Judge, Frank Pokluda served as

Commissioner for Waller County Precinct 2, and Stan Kitzman served as

Commissioner for Waller County Precinct 4.

      The case was tried to a jury, which rendered its verdict on December 18, 2014.

Among other things, the jury found that the Waller County Commissioners Court

deliberated non-legal matters in a closed meeting, relating to both Waller County

Ordinance No. 2013-001 (authorizing disposal of solid waste within Hempstead’s

extraterritorial jurisdiction) and an agreement between the county and Pintail

regarding the proposed landfill. In three separate questions, the jury also specifically

found that Judge Beckendorff, Commissioner Pokluda, and Commissioner Kitzman

each “failed to comply” with a legal requirement relating to public information.2


2
      With respect to each, the jury was asked to determine whether he “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
                    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;

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      Because Judge Beckendorff did not seek re-election, and because

Commissioners Pokluda and Kitzman lost their elections, all three of them no longer

served as officers of Waller County effective January 1, 2015. On that date, a new

county judge and new commissioners for precincts 2 and 4 were sworn into office.

      The parties to the lawsuit subsequently reached a settlement agreement, and

they filed a joint motion for entry of an agreed final judgment. The agreed final

judgment (1) voided the challenged Waller County ordinance; (2) voided the

agreement between Waller County and Pintail; and (3) required Waller County to

pay attorney’s fees to Hempstead and CALH. The document stated: “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 agreed final judgment was signed by attorneys

for all parties, including the “Waller County Defendants” identified as “Waller

County, Texas including the elected officials of the Waller County Commissioners

Court, in their official capacities.” The trial court signed the agreed final judgment.



             (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.


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      Former county judge Beckendorff filed a notice of appeal, purportedly “in his

official capacity as Waller County Judge.” Former commissioners Pokluda and

Kitzman subsequently filed a similar notice of appeal in which Pokluda purported to

appeal “in his official capacity as Waller County Precinct Two Commissioner” and

Kitzman purported to appeal “in his official capacity as Waller County Precinct Four

Commissioner.”

                                       Analysis

      Waller County, Hempstead, and CALH each filed motions to dismiss this

appeal because the putative appellants are no longer members of the Waller County

Commissioners Court. Among other legal arguments, the motions argue that

Beckendorff, Pokluda, and Kitzman lacked the official capacity in which they

claimed to file their notices of appeal. A party has capacity when it has the legal

authority to act, regardless of whether it has a justiciable interest in the controversy.

See, e.g., Nootsie, Ltd. v. Williamson Cnty. Appraisal Dist., 925 S.W.2d 659, 661

(Tex. 1996).

      Although each former officeholder purports to pursue this appeal “in his

official capacity,” it is undisputed that each of them no longer held office effective

January 1, 2015. The notices of appeal were filed after that date, at a time when they

were no longer officials of Waller County and thus had no “official capacity.” The

former officials’ lack of authority is further demonstrated by a resolution of the



                                           5
Waller County Commissioners Court, filed in this court in support of Waller

County’s motion to dismiss, which stated as follows:

      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
      Judgment 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

      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 . . . dismiss the current pending matter entitled, Glenn

                                         6
      Beckendorff, in his Official Capacity as Waller County Judge, et al. v.
      City of Hempstead, et al . . . .

      This court requested a response to the motions to dismiss. In the response,

little was offered in the way of argument. The entire substance of that response was:

             It is not disputed that Appellants Beckendorff, Kitzman and
      Pokluda were sued in an official capacity and all ceased to continue to
      perform in their official capacities in which they had been sued as of an
      election which was held prior to January 1, 2015.

             However, an alleged Agreed Final Judgment did not
      automatically substitute officers as per TEX. R. APP. P. 7.2(a). (See the
      alleged Agreed Final Judgment, which can be found at Vol. 200 pg. 154
      of the Waller County Civil Minutes.) Jury Question Nos. 7-9 which
      were attached to the “Agreed Final Judgment” failed to show any
      questions which found any need for the findings of fact and conclusions
      of law. And thus they were precluded to need or use same for
      settlement.

This response reflects the apparent gravamen of this attempted appeal, the former

officials’ dissatisfaction that the dispute was settled by their successors, and that the

jury charge and verdict (which mentioned them by name), were attached to the final

judgment. Nevertheless, the final judgment imposes no obligations on the former

officials in their individual capacities. And while Beckendorff, Kitzman, and

Pokluda allude to a perceived failure to formally “substitute officers” as parties to

the trial court proceeding, the final judgment generically references “the elected

officials of the Waller County Commissioners Court, in their official capacities.”

The only mention of the former officeholders by name appears in the jury verdict

attached to the final judgment, which as matters of historical fact accurately reflected


                                           7
both that Beckendorff, Pokluda, and Kitzman were named parties at the time of trial

and that the jury was asked questions about their individual conduct.

      We express no opinion about the merits of the former officials’ complaints

about the post-trial procedures followed with respect to the settlement of the case

and the entry of an agreed final judgment with the jury verdict attached. The former

officials, acting in their individual capacities, had procedural tools available to object

to perceived defects affecting them, such as a motion to intervene in the trial court

in their individual capacities, see TEX. R. CIV. P. 60, and the availability of

mandamus review if they were adversely affected by the trial court’s abuse of its

discretion under circumstances leaving them no possibility of appeal. We simply

hold that, having been divested of their official authority at the expiration of their

terms in office, they then lacked official capacity to appeal from the final judgment.3

Their notices of appeal, relying upon empty claims of authority based on the official

capacities of current officeholders, were factually inaccurate. Beckendorff, Kitzman,

and Pokluda claim no other basis of authority to pursue their attempted appeal.




3
      Because Beckendorff, Kitzman, and Pokluda lost their official capacity to
      represent Waller County while this case was still pending in the trial court and
      before the initiation of any appeal, Appellate Rule 7.2(a), providing for the
      automatic substitution of an officer as party in an official capacity to an
      appeal, has no application.

                                            8
                                     Conclusion

      In light of the undisputed facts that former county judge Beckendorff, former

commissioner Pokluda, and former commissioner Kitzman lack the “official

capacity” each claimed as authority to file a notice of appeal, we hold that as a matter

of law, they likewise lacked the necessary capacity to appeal from the judgment. The

motions to dismiss this appeal are granted. See TEX. R. APP. P. 42.3(a). All other

pending motions are denied.




                                               Michael Massengale
                                               Justice

Panel consists of Justices Jennings, Massengale, and Huddle.

Justice Jennings, dissenting.




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