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

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, HANCE SCARBOROUGH, LLP 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 [email protected] Terry L. Scarborough State Bar No. 17716000 [email protected] Wesley P. McGuffey State Bar No. 24088023 [email protected] COUNSEL FOR APPELLEE CITIZENS AGAINST THE LANDFILL IN HEMPSTEAD

WALLER COUNTY CRIMINAL DISTRICT ATTORNEY’S OFFICE 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 [email protected] 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 [email protected] ATTORNEYS FOR APPELLEE CITY OF HEMPSTEAD

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 [email protected] [email protected] HERGZOG & CARP 506th Judicial District Court 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 [email protected] [email protected] Art Pertile MCELROY, SULLIVAN, MILLER, [email protected] 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 [email protected] LAW OFFICE OF MICHAEL S. TRUESDALE, Elton Mathis, Jr. PLLC [email protected] 801 West Avenue, Suite 201 WALLER COUNTY DISTRICT ATTORNEY Austin, Texas 78701 Ruhee G. Leonard Telephone: (512)482-8671 [email protected] Facsimile: (866)847-8719 Assistant District Attorney Attorney for Pintail Landfill, LLC 12th Street Hempstead, Texas 77445 Facsimile (919) 826-7722 Attorneys for Waller County /s/ V. Blayre Peña V. Blayre Peña