                                                                                             ACCEPTED
                                                                                         01-15-00523-CV
                                                                              FIRST COURT OF APPEALS
                                                                                      HOUSTON, TEXAS
                                                                                     7/8/2015 2:07:04 PM
                                                                                   CHRISTOPHER PRINE
                                                                                                  CLERK

                               NO. 01-15-00523-CV

                        IN THE COURT OF APPEALS              FILED IN
                    FOR THE FIRST DISTRICT OF TEXAS 1st COURT     OF APPEALS
                                                          HOUSTON, TEXAS
                               AT HOUSTON             7/8/2015 2:07:04 PM
    __________________________________________________________________
                                                      CHRISTOPHER A. PRINE
                                                                      Clerk

             GLENN BECKENDORFF, IN HIS OFFICIAL CAPACITY
                  AS WALLER COUNTY JUDGE, ET. AL.
                                                                        Appellants
                                  v.
            CITY OF HEMPSTEAD, TEXAS, CITIZENS AGAINST THE
              LANDFILL IN HEMPSTEAD, AND WALLER COUNTY
                                                          Appellees

                   On Appeal from the 506th Judicial District Court
                  of Waller County, Texas, Cause No. 13-03-21872;
                      The Honorable Terry Flenniken, Presiding



CITIZENS AGAINST THE LANDFILL IN HEMPSTEAD’S, THE CITY OF
         HEMPSTEAD’S AND WALLER COUNTY’S JOINT
 RESPONSE TO APPELLANTS’ MOTION FOR EXTENSION OF TIME
                 TO RESPOND TO MOTIONS




TO THE HONORABLE FIRST COURT OF APPEALS:

         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

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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


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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.




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      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


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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.




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      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,

                                              HANCE SCARBOROUGH, 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




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          WALLER COUNTY CRIMINAL
          DISTRICT ATTORNEY’S OFFICE
          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

          OLSON & OLSON, 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




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                         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
HERGZOG & CARP                              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                                 MCELROY, SULLIVAN, MILLER,
apertile@olsonllp.com                       WEBER, & OLMSTEAD, LLP
OLSON & OLSON, 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
                                            LAW OFFICE OF MICHAEL S. TRUESDALE,
Elton Mathis, Jr.                           PLLC
e.mathis@wallercounty.us                    801 West Avenue, Suite 201
WALLER COUNTY DISTRICT ATTORNEY             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 12th Street
Hempstead, Texas 77445
Facsimile (919) 826-7722
Attorneys for Waller County

                                              /s/ V. Blayre Peña
                                              V. Blayre Peña
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