the State of Texas, Ex. Rel. Todd A. Durden, in His Official Capacity as County Attorney of Kinney County, Texas, Relator v. Rick Alvarado, in His Official Capacity as District and County Clerk of Kinney County, Texas, And Kinney County, Texas, by and Through Its Governing Body the Kinney County Commissioners Court, Being James T. 'Tully' Shahan, in His Official Capacity as County Judge Mark Frerich, in His Official Capacity as County Commissioner Joe Montalvo, in His Official Capacity as County Commissioner Dennis Dodson, in His Official Capacity as County Commissioner

Fourth Court of Appeals
San Antonio, Texas
July 6, 2021

No. 04-19-00714-CV, 04-19-00715-CV, 04-19-00716-CV

The STATE of Texas ex. rel. Todd A. Durden, In His Official Capacity as County Attorney,
Appellant

v.

James T. 'Tully' SHAHAN, In His Official Capacities as County Judge; Mark Frerich, In His
Official Capacity as County Commissioner; Joe Montalvo, In His Official Capacity as County
Commissioner; Dennis Dodson, In His Official Capacity as County Commissioner; Tim Ward,
In His Official Capacity as County Commissioner; Kinney County Commissioners Court and
Kinney County,
Appellees

From the 63rd Judicial District Court, Kinney County, Texas
Trial Court No. 4845, 4863, 4866
Honorable Sid L. Harle, Judge Presiding

ORDER

Sitting: Patricia O. Alvarez, Justice
Luz Elena D. Chapa, Justice
Irene Rios, Justice

On May 12, 2021, this court issued its opinions and judgments in these appeals. Motions
for rehearing or en banc reconsideration were due on May 27, 2021. See TEX. R. APP. P. 49.1
On May 25, 2021, new appellate counsel filed notices of appearance on behalf of “Todd
A. Durden, individually and in his official capacity” and opposed motions for extension of time
to file motions for rehearing and motions for en banc reconsideration.
Also on May 25, 2021, the Kinney County appellees advised this court that effective
January 1, 2021, Brent Smith is the Kinney County Attorney. See TEX. R. APP. P. 7.2.
On May 28, 2021, the Kinney County appellees moved to strike the May 25, 2021 notices
of appearance and to deny the motions for extension of time to file motions for rehearing and en
banc reconsideration. The Kinney County appellees assert that, because Todd A. Durden is no
longer the Kinney County attorney, he has no authority to file any motion in his former official
capacity. The appellees also argue that because Durden failed to file notices of appeal in his
individual capacity, he is not a proper appellant. The appellees ask this court to deny the May
25, 2021 notices of appearance and motions for extension of time to file motions for rehearing or
en banc reconsideration.
On June 1, 2021, this court requested a response from counsel whose May 25, 2021
notices seek to appear in these appeals on behalf of “Todd A. Durden, individually and in his
official capacity.”
On June 28, 2021, appearing counsel timely filed a response.
The Kinney County appellees’ motion to strike the notices of appearance on behalf of
Todd A. Durden, individually, is DENIED.
The Kinney County appellees’ motion to strike the notices of appearance on behalf of
Todd A. Durden in his official capacity is HELD IN ABEYANCE.
Without rescinding or revising our previous decision that Todd A. Durden was not a
proper appellant in his individual capacity and he lacked authority as the former Kinney County
Attorney to bring the underlying suits on behalf of the State of Texas, we GRANT Todd A.
Durden’s motion for an extension of time to file motions for rehearing or motions for en banc
reconsideration. The motions are due within THIRTY DAYS of the date of this order.

_________________________________
Patricia O. Alvarez, Justice

IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 6th day of July, 2021.

___________________________________
MICHAEL A. CRUZ, Clerk of Court