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


                         DISSENTING OPINION
      The majority errs in granting the motions of appellees, City of Hempstead

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

Waller County, Texas, to dismiss the appeal of appellants, Glenn Beckendorff,

former Waller County Judge, Frank Pokluda, former Waller County Precinct Two

Commissioner, and Stan Kitzman, former Waller County Precinct Four

Commissioner. Accordingly, I respectfully dissent.

      The majority concludes that appellants lack the capacity, i.e., the personal

qualifications, to challenge the trial court’s judgment because they “no longer

h[o]ld office” and their “notices of appeal were filed . . . at a time when [they]

were no longer officials of Waller County and thus had no ‘official capacity.’”

And it holds that “having been divested of their official authority at the expiration

of their terms in office, the appellants thereafter lack official capacity to appeal

from the final judgment.”

      In reaching its conclusion and holding, the majority misconstrues appellants’

appeal as a challenge to the substance and entirety of the trial court’s

judgment—an “Agreed Final Judgment” based upon a settlement agreement by the

“parties to the lawsuit.” The majority asserts that appellants’ challenge is based on

their “[d]issatisf[action] with the settlement.”

      I agree that appellants do not have either standing, i.e., a justiciable interest,

or the capacity, i.e., the personal qualifications, to challenge, on behalf of Waller



                                           2
County, the substance and entirety of the trial court’s judgment. They are in fact

no longer Waller County officials. However, appellants are not attempting to

challenge, on behalf of Waller County, the substance and entirety of the trial

court’s judgment.1 Rather, alternative arguments aside, they are only challenging

the trial court’s judgment to the extent that it erroneously names them as parties “in

their official capacit[ies].”    See TEX. R. APP. P. 43.2 (“The court of appeals

may . . . (a) affirm the trial court’s judgment in whole or in part; (b) modify the

trial court’s judgment and affirm it as modified; [or] (c) reverse the trial court’s

judgment in whole or in part and render the judgment that the trial court should

have rendered. . . .”).

       As appellants succinctly state: “The primary relief sought by [them] is the

substitution of parties. . . . [Appellants’] names should have been substituted [with

the names of] the newly elected officials in any documents created and entered

related to this matter after [appellants] left office.”          And in their first issue,

appellants clearly contend that

       [t]he trial court erred in failing to grant Appellants’ Motion to
       Strike/Dismiss the former Commissioners as parties to the suit.


1
       Appellants assert, “If [this] Court holds that they are proper parties, then they must
       attack the Agreed Final Judgment as void.” (Emphasis added.) And in such
       “alternative” case, the trial court erred in “overruling [their] objections to the jury
       charge”; denying their plea to the jurisdiction and motion for judgment
       notwithstanding the verdict; “granting the Joint Motion to Enter the Agreed Final
       Judgment”; and “entering the Agreed Final Judgment.”

                                              3
      Given the undisputed facts, it is readily apparent that the trial court did err in

not granting appellants’ motion. And, to the extent that appellants are simply

seeking the substitution of parties, to which they are entitled as a matter of law,

they have both standing and the capacity to assert their challenge to the trial court’s

judgment on appeal to this Court.

                                    Background

      On December 18, 2014, a jury rendered a verdict in favor of Hempstead and

CALH in their suit for declaratory and injunctive relief against appellants. On

December 31, 2014, Beckendorff’s term as county judge expired, and he was

succeeded in office by Carbett “Trey” J. Duhon III. Pokluda’s and Kitzman’s

terms as county commissioners also expired at that time, and they were succeeded

in office by Russell Klecka and Justin Beckendorff, respectively.

      Two weeks later, on January 12, 2015, Hempstead and CALH moved for

entry of judgment on the jury’s verdict against “Waller County, Texas; Glenn

Beckendorff, in his official capacity as County Judge of Waller County, Texas;

John Amsler, Frank Pokluda, Jeron Barnett, and Stan Kitzman, in their official

capacities as County Commissioners for Waller County, Texas; and Pintail

Landfill, LLC [(“Pintail”)] (collectively, “Waller County”).” And Hempstead set

the motion for a hearing on January 21, 2015. The record shows that appellants’

counsel proposed resetting the hearing, along with certain briefing deadlines, in



                                           4
order to “adequately brief [his] clients, the newly elected Waller County

Commissioners Court, on the[] issues.” The parties agreed, each noting that there

remained “issues still to be decided by the [trial court] (ETJ, sufficiency/adequacy

of notice, and remedies/judgment to be entered given the jury verdict).”

      On January 16, 2015, Waller County moved to strike “former Waller County

Judge Glenn Beckendorff, former Waller County Commissioner Frank Pokluda,

and former Waller County Commissioner Stan Kitzman as parties” to the suit

because they were “no longer members of the Waller County Commissioners

Court and h[e]ld no official capacity with Waller County, Texas.” To the motion,

it attached the affidavit of Waller County Clerk Debbie Hollan, who testified that,

“[a]s of January 1, 2015,” the “duly elected” and “serving County Judge of Waller

County, Texas, is the Honorable Carbett “Trey” Duhon III; “serving County

Commissioner – Precinct 2 of Waller County, Texas, is the Honorable Russell

Klecka”; and “serving County Commissioner – Precinct 4 of Waller County,

Texas, is the Honorable Justin Beckendorff.”

      On February 20, 2015, Hempstead, CALH, Pintail, and Waller County,

purportedly including “Glenn Beckendorff, in his official capacity as County Judge

of Waller County, Texas; John Amsler, Frank Pokluda, Jeron Barnett, and Stan

Kitzman in their official capacities as County Commissioner for Waller County,

Texas, (collectively “Waller County”),” filed a “Joint Motion for Entry of Agreed



                                         5
Final Judgment,” in which they represented that “the Parties ha[d] entered into

settlement negotiations and ha[d] reached a settlement agreement for entry of an

agreed final judgment, resolving all issues in this lawsuit, except any claim,

defense, or assertion” regarding the validity of the ordinance and permit, and the

Pintail facility.2

       The trial court then signed an “Agreed Final Judgment,” in which it found

that plaintiffs, Hempstead and CALH, and “[d]efendants, Waller County, Texas

including the elected officials of the Waller County Commissioners Court, in their

official capacities (collectively, “Waller County”),” had reached a settlement

agreement “concerning the jury verdict and the remaining legal and factual issues

pending before the Court.” The trial court “render[ed]” judgment voiding “Waller

County Ordinance No. 2013-001” and the “Host Agreement” between Waller

County and Pintail. And it ordered Waller County to pay attorneys’ fees of

$245,000 and $325,000 to Hempstead and CALH, respectively. The trial court

excluded from its adjudication “any issue concerning any claim, defense, or

assertion” that “has been or may in the future be raised” regarding a certain

ordinance, permit application, and facility relating to Pintail.

       Further, the trial court, in its judgment, “incorporated for all purposes” and

attached for “reference” the “charge of the Court,” in which it defined “Waller

2
       Beckendorf, Pokluda, and Kitzman dispute that they participated in any such
       settlement agreement or the “Joint Motion for Entry of Agreed Final Judgment.”

                                           6
County” as “the Waller County Commissioners Court, Judge Glenn Beckendorff

and Waller County Commissioners Frank Pokluda, Stan Kitzman, Jeron Barnett,

and John Amsler.” Subsequently, Beckendorff, “in his official capacity as Waller

County Judge,” later joined by Pokluda and Kitzman, each “in his official capacity

as Waller County . . . Commissioner,” appealed the trial court’s judgment in the

same manner in which they were named in the judgment.

                              Standing and Capacity

      In their first issue, appellants argue that the trial court “erred in not granting

[their] Motion to Dismiss/Strike the Former Commissioners as parties to the suit”

because they were sued “in their official capacities” on behalf of Waller County

and, “[o]nce they left office, the newly elected officials should have been

substituted in.” Appellees, in their motions to dismiss the appeal, argue that

appellants lack standing and capacity because they are no longer the elected

officials of Waller County.

      The Texas Supreme Court has explained that the issue of standing “focuses

on whether a party has a sufficient relationship with the lawsuit so as to have a

‘justiciable interest’ in its outcome, whereas the issue of capacity ‘is conceived of

as a procedural issue dealing with the personal qualifications of a party to

litigate.’” Austin Nursing Ctr., Inc. v. Lovato, 171 S.W.3d 845, 848 (Tex. 2005)

(quoting 6A CHARLES ALAN WRIGHT, ET AL., FEDERAL PRACTICE AND PROCEDURE:



                                           7
CIVIL § 1559, at 441 (2d ed. 1990)). It previously distinguished between these two

threshold requirements as follows:

      A plaintiff has standing when it is personally aggrieved, regardless of
      whether it is acting with legal authority; a party has capacity when it
      has the legal authority to act, regardless of whether it has a justiciable
      interest in the controversy.

Id. at 848–49 (quoting Nootsie, Ltd. v. Williamson Cty. Appraisal Dist., 925

S.W.2d 659, 661 (Tex. 1996)); see also 6A CHARLES ALAN WRIGHT,                  ET AL.,

FEDERAL PRACTICE     AND   PROCEDURE: CIVIL § 1559, at 441 (“Capacity has been

defined as a party’s personal right to come into court, and should not be confused

with the question of whether a party has an enforceable right or interest.”).

      In its judgment, the trial court expressly defines, by reference to the jury

charge, which it attached and incorporated “for all purposes,” the “[d]efendants”

(appellants) as the former officials in their official capacities. And there is no

mention in the judgment of the successor county judge and commissioners, who

were actually in office at the time the judgment was rendered. When, as here, a

document is incorporated into another by reference, both instruments must be read

and construed together. See In re Bank One, N.A., 216 S.W.3d 825, 826 (Tex.

2007); Hooker v. Nguyen, No. 14-04-00238-CV, 2005 WL 2675018, at *3 (Tex.

App.—Houston [14th Dist.] Oct. 20, 2005, pet. denied) (mem. op.) (construing

trial court’s judgment incorporating jury charge).




                                          8
      Although appellants, in their “official capacities,” were in fact parties in the

trial court when the jury returned its verdict against them in November 2014, they

had ceased to hold their offices by the time the trial court rendered its February

2015 “Agreed Final Judgment,” which was based on the “settlement agreement

concerning the jury verdict and the remaining legal and factual issues pending

before the Court.” Thus, the trial court rendered a judgment against appellants as

former officials in their “official capacities” after they, as the majority states, “no

longer held office” and “at a time that they were no longer officials of Waller

County.”

      Generally, a trial court may not enter a judgment against a party not before

it. Mapco, Inc. v. Carter, 817 S.W.2d 686, 687–88 (Tex. 1991). “Civil suits may

be maintained only by or against parties having an actual or legal existence.”

Bailey v. Vanscot Concrete Co., 894 S.W.2d 757, 759 (Tex. 1995), disapproved on

other grounds, Chilkewitz v. Hyson, 22 S.W.3d 825, 830 (Tex. 1999). Such lack of

jurisdiction constitutes fundamental error, which we are obligated to notice when it

is apparent from the face of the record. Estate of C.M. v. S.G., 937 S.W.2d 8, 10

(Tex. App.—Houston [14th Dist.] 1996, no writ). To the extent that the trial

court’s judgment is against appellants in their “official capacities” as former

officials, the judgment is void. See Supak v. Zboril, 56 S.W.3d 785, 793–95 (Tex.

App.—Houston [14th Dist.] 2001, no pet.) (“[A] judgment may be void in part and



                                          9
valid in part provided the valid portion is not so dependent on the invalid as to fall

with it.” (quoting Kubena v. Hatch, 193 S.W.2d 175, 177 (Tex. 1946))); see also

Estate of C.M., 937 S.W.2d at 10–11, 10 n.2 (reversing portion of judgment against

estate where “no legal entity” existed as defendant).

      Further, that a suit against a public official is brought against the position

occupied, and not against the official himself, is demonstrated by well-established

procedural rules that provide for automatic substitution when an official leaves

office and is succeeded by another. See, e.g., FED. R. CIV. P. 25(d)(1); FED. R. APP.

P. 43; TEX. R. APP. P. 7.2; see also Kentucky v. Graham, 473 U.S. 159, 165–66,

105 S. Ct. 3099, 3105 (1985); Tex. A&M Univ. Sys. v. Koseoglu, 233 S.W.3d 835,

844 (Tex. 2007) (suit against governmental official in his official capacity “is not a

suit against the official personally, for the real party in interest is the entity”);

Winograd v. Clear Lake City Water Auth., 811 S.W.2d 147, 162 (Tex. App.—

Houston [1st Dist.] 1991, writ denied).

      For example, under Federal Rule of Civil Procedure 25(d), if a public

officer, which includes federal, state, and local officials, is replaced during the

pendency of a lawsuit in a trial court, the official’s successor in office is

automatically substituted as a party and the proceedings continue in the name of

the substituted party. See FED. R. CIV. P. 25(d) & advisory committee’s note to

1961 amend.; see also FED. R. APP. P. 43(c)(1). The successor is automatically



                                          10
substituted as a party without an application or showing of need to continue the

action. See FED. R. CIV. P. 25(d) advisory committee’s note to 1961 amend. The

rule applies to any action brought in form against a named officer, but intrinsically

against the government or the office; against an officer to compel performance of

official duties; or to obtain judicial review of an officer’s orders. Id. It also

applies to actions to prevent officers from acting in excess of their authority or

under authority not validly conferred. Id. And it applies whether declaratory or

injunctive relief is sought. Id. The rules effectuating automatic substitution of

public officials are “specifically designed to prevent suits involving public officers

from becoming moot due to personnel changes.” Id. (citing Karcher v. May, 484

U.S. 72, 74, 83, 108 S. Ct. 388, 391, 395 (1987)). “Where [a] successor does not

intend to pursue the policy of his predecessor which gave rise to the lawsuit, it will

be open to him, after substitution, . . . to seek to have the action dismissed as moot

or to take other appropriate steps to avert a judgment or decree.” See FED. R. CIV.

P. 25(d) advisory committee’s note to 1961 amend. (emphasis added).

      Also, in Texas appellate courts,

      [w]hen 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.
      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. An order of substitution may



                                         11
      be entered at any time, but failure to enter an order does not affect the
      substitution.

TEX. R. APP. P. 7.2(a).

      Although Texas does not have a rule providing for automatic substitution of

public officers at the trial court level, substitution was, as discussed above,

necessarily required to avoid rendering a void judgment. Although Waller County

and appellants, prior to the entry of the trial court’s judgment, moved to

strike/dismiss appellants from the suit and for substitution of their successors, no

ruling on their motion appears in the record, and the trial court failed to substitute

their successors into its judgment. Because appellees brought their suit against

appellants as governmental officials acting in their “official capacities,” and this is

not a suit against appellants “personally,” the real defendant in this case, in regard

to appellants, is Waller County.       See Koseoglu, 233 S.W.3d at 844.           Once

appellants ceased to hold their public offices as county judge and commissioners of

Waller County, the trial court should have substituted their successors as parties in

their stead. Thus, the trial court necessarily and fundamentally erred in denying

appellant’s Motion to Dismiss/Strike them as parties to the suit.

      Moreover, because appellants, as erroneously named parties, have “a

sufficient relationship with the lawsuit so as to have a ‘justiciable interest’” in it,

they, contrary to appellees’ assertions, have standing to bring this appeal. See

Lovato, 171 S.W.3d at 848.        And appellants also have the capacity, i.e., the

                                          12
“personal qualifications,” to challenge the trial court’s erroneous inclusion of them

as parties to this litigation after they ceased to be Waller County officials. See id.

      Accordingly, I would deny appellees’ motion to dismiss this appeal, address

and sustain appellants’ first issue, and modify the trial court’s judgment to

substitute appellants’ successors in office in place of appellants as the proper

parties to the judgment. See TEX. R. APP. P. 43.2(b). In denying appellants their

ability to make their appellate challenge and obtain the relief to which they are

legally entitled, the majority unnecessarily creates a classic Catch-22, which, if

allowed to stand, will serve to preclude all similarly-situated former public

officials from seeking the appellate remedy of having their names removed from

lawsuits after they have ceased to be parties.




                                                 Terry Jennings
                                                 Justice

Panel consists of Justices Jennings, Massengale, and Huddle.

Jennings, J., dissenting.




                                          13
