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 v. City of Hempstead, Texas, Citizens Against the Landfill in Hempstead, Pintail Landfill, LLC, and Waller County, Texas

ACCEPTED
01-15-00523-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
6/29/2015 5:08:58 PM
CHRISTOPHER PRINE
CLERK

NO. 01-15-00523-CV

In the Court of Appeals FILED IN
1st COURT OF APPEALS
For the First District of Texas HOUSTON, TEXAS
at Houston, Texas 6/29/2015 5:08:58 PM
CHRISTOPHER A. PRINE
Clerk

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 and CITIZENS AGAINST THE
LANDFILL IN HEMPSTEAD and PINTAIL LANDFILL, INC.,
Appellees

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

RESPONSE TO MOTION TO SHOW AUTHORITY

TO THE HONORABLE FIRST COURT OF APPEALS:

NOW COME Appellants, 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 and file the following Response

to Appellee City of Hempstead’s Motion to Show Authority.
 Appellee, the City of Hempstead, has filed a Motion to Show Authority

and challenged the representation of Elton Mathis, and against representation

by the undersigned.

However, the affidavits attached hereto prove that Elton Mathis began

this suit by taking the position he had a conflict of interest for the

representation of the City of Hempstead. Therefore, the individual Judges of

Waller County and Waller County itself then sought representation by other

firms, including the firm of Allison Bass.

After, three of the individual Directors of Waller County either did not

seek re-election or were not successful in their re-election attempts. Such

occurred on or about January 1, 2015. At such time the Allison Bass firm told

the individual Waller County Judges they would not be represented.

Therefore, the only way that the individual Waller County Judges could

receive legal representation was to hire their own representation.

WHEREFORE, Appellants respectfully request that Appellee City of

Hempstead’s Motion to Show Authority be denied.

2
Dated: June 29, 2015 Respectfully submitted,

By: /s/ David A. Carp
David A. Carp
TBN: 03836500
Herzog & Carp
427 Mason Park Boulevard
Katy, Texas 77450
713.781.7500 Phone
713.781.4797 Fax
dcarp@hcmlegal.com
Attorneys for Appellants

3
 CERTIFICATE OF SERVICE

I hereby certify that on June 29, 2015 a true and correct copy of the
foregoing Response to Motion to Show Authority was e-filed with the clerk of
the First Court of Appeals and delivered via e-filing / e-service to the following:

Eric Farrar, Esq. Brent W. Rayn,Esq.
Olson & Olson, LLP McElroy, Sullivan, Miller,
Wortham Tower, Suite 600 Weber & Olmstead, LLP
2727 Allen Parkway P.O. Box 12127
Houston, Texas 77019 Austin, TX 78711
efarrar@olsonllp.com bryan@msmtx.com
Attorneys for City of Hempstead
Michael S. Truesdale, Esq.
Elton R. Matrhis, Jr., Esq. Law Office of Michael Truesdale
Waller County District Attorney 801 West Avenue, Suite 201
645 12th Street Austin, TX 78701
Hempstead, TX 77445 mike@truesdalelaw.com
e.mathis@wallercounty.us
Attorney for Waller County Attorneys for Pintail Landfill

Terry L. Scarborough
Michael L. Woodward
V. Blayre Pena
Hance Scarborough, LLP
400 W 15th #950
Austin, Texas 78701
tscarborough@hslawmail.com
bpena@hslawmail.com
and

4
Carol A. Chaney
Law Office of Carol A. Chaney
820 13th Street
P.O. Box 966
Hempstead, Texas 77445
carol.chaney@thechaneyfirmlnet
Attorneys for Citizens Against the Landfill
in Hempstead

/s/ David A. Carp
David A. Carp

5
 NO. 01-15-00523-CV

In the Court of Appeals
For the First District of Texas
at Houston, Texas

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 and CITIZENS AGAINST THE
LANDFILL IN HEMPSTEAD and PINTAIL LANDFILL, INC.,
Appellees

On Appeal from the 5061h Judicial District Court
of Waller County, Texas
Trial Court Cause No. 13-03-21872

STATE OF TEXAS )
)
COUNTY OF HARRIS )

AFFIDAVIT

BEFORE ME, the undersigned authority, on this day personally

appeared Floyd Glenn Beckendorff, a person whose identity is known to me,

who upon his oath first administered by me, stated the following:

1
 1. My name is Floyd Glenn Beckendorff. tam over 21 years of age

and am otherwise fully capable of making this affidavit. I have personal

knowledge of the facts stated in this affidavit, and they are true and correct.

2. I was County Judge of Waller County at all times relevant to this

lawsuit except after December 31, 2014 when I was no longer in office.

3. It was my understanding that I was no longer going to be a party

to the lawsuit after December 31, 2014 because I was no longer an elected

official. Further, it was not necessary that I participate. It was the office of

Judge of the County that was being sued--not the individual.

4. I further understood that I did not and would not have

representation through counsel retained by the county after December 31,

2014.

5. Ever since the verdict was rendered, I had intended to consider

an appeal if one was available or necessary.

6. After a review by David Carp of the Court's file on March 11,

2015, I found out through David Carp about the alleged "Agreed Final

Judgment."

7. I was not a part of any negotiations directed to an agreed final

judgment of which I would be a part of or affected by.

2
 8. The failure to file the Notice of Appeal by March 23rd was not

deliberate or intentional but was the result of inadvertence, mistake or

mischance due to whether I was represented by counsel , whether I was a

party to the suit and what I consider failure to receive notice of the

negotiations regarding the "Agreed Final Judgment."

FURTHER AFFIANT SAYETH NAUGHT.

,1~ JiLM
FIYd Glenn ILW~
BeckendOfff

SUBSCRIBED AND SWORN TO BEFORE ME on this 29th day of
June, 2015 to certify which witness my hand and seal of office.
\

Notary Public in
State of Texas
ANN JACOBS
MY COMMISSION EXPIRES
~17,2016

3
 NO. 01-15-00523-CV

In the Court of Appeals
For the First District of Texas
at Houston, Texas

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 and CITIZENS AGAINST THE
LANDFILL IN HEMPSTEAD and PINTAIL LANDFILL, INC.,
Appellees

On Appeal from the 5061h Judicial District Court
of Waller County, Texas
Trial Court Cause No. 13-03-21872

STATE OF TEXAS )
)
COUNTY OF HARRIS )

AFFIDAVIT

BEFORE ME, the undersigned authority, on this day personally

appeared Stan Kitzman, a person whose identity is known to me, who upon

his oath first administered by me, stated the following:

1
 1. My name is Stan Kitzman. I am over 21 years of age and am

otherwise fully capable of making this affidavit. I have personal knowledge of

the facts stated in this affidavit, and they are true and correct.

2. I was Waller County Precinct Four Commissioner at all times

relevant to this lawsuit except after December 31, 2014 when I did not seek

re-election and was no longer in office.

3. It was my understanding that I was no longer going to be a party

to the lawsuit after December 31, 2014 because I was no longer an elected

official. Further, it was not necessary that I participate. It was the office of

Commissioner- Precinct Four that was being sued--not the individual.

4. I further understood that I did not and would not have

representation through counsel retained by the county after December 31,

2014.

5. Ever since the verdict was rendered, I had intended to consider

an appeal if one was available or necessary.

6. After a review by David Carp of the Court's file on March 11,

2015, I found out through David Carp about the alleged "Agreed Final

Judgment."

2
 7. I was not a part of any negotiations directed to an agreed final

judgment of which I would be a part of or affected by.

8. The failure to file the Notice of Appeal by March 23rd was not

deliberate or intentional but was the result of inadvertence, mistake or

mischance due to whether I was represented by counsel, whether I was a

party to the suit and what I consider failure to receive notice of the

negotiations regarding the "Agreed Final Judgment."

FURTHER AFFIANT SAYETH NAUGHT.

s -
SUBSCRIBED AND SWORN TO BEFORE ME on this 29th day of
June, 2015 to certify which witness my hand and seal of office.

Notary P lie in and for the
State of Texas
ANN JACOBs
MYCOMMISSION EXPIRES
~17,2016

3