Opinion

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

Court: Texas Court of Appeals, 1st District (Houston)
Filed: Jun 8, 2015
Status: Published
Cited by: 0 cases
Authority: More cited than 3.1%

“[A] judgment against a public servant ‘in his official capacity’ imposes liability on the entity that he represents provided, of course, the public entity received notice and an opportunity to respond.”

How later courts described this case

“[A] judgment against a public servant ‘in his official capacity’ imposes liability on the entity that he represents provided, of course, the public entity received notice and an opportunity to respond.”

Written by the judges who cited it.

The opinion

ACCEPTED

14-15-00322-CV

FOURTEENTH COURT OF APPEALS

HOUSTON, TEXAS

6/8/2015 1:54:10 PM

CHRISTOPHER PRINE

CLERK

NO. 14-15-00322-CV

_____________________________________________________________

FILED IN

14th COURT OF APPEALS

IN THE COURT OF APPEALS HOUSTON, TEXAS

FOR THE FOURTEENTH DISTRICT OF TEXAS 6/8/2015 1:54:10 PM

AT HOUSTON, TEXAS CHRISTOPHER A. PRINE

_____________________________________________________________

Clerk

GLENN BECKENDORFF, IN HIS OFFICIAL CAPACITY AS

WALLER COUNTY JUDGE

Appellants

CITY OF HEMPSTEAD, TEXAS AND

CITIZENS AGAINST THE LANDFILL IN HEMPSTEAD

Appellees

_____________________________________________________________

On Appeal from the 506TH Judicial District Court of Waller County, Texas

Honorable Terry Flenniken, Presiding

MOTION TO DISMISS

______________________________________________________________

TO THE HONORABLE FIRST OR FOURTEENTH1 COURT OF APPEALS:

Appellee, the City of Hempstead, Texas moves to dismiss the appeal.

I. Background

Appellants, Glenn Beckendorff, in his official capacity as Waller County

Judge, Frank Pokluda, in his official capacity as Waller County Precinct Two

Pursuant to the courts’ local rules, this case should have been assigned to the First Court of

Appeals. A motion to transfer was filed 3 June 2015.

Commissioner, and Stan Kitzman, in his official capacity as Waller County Precinct

Four Commissioner, appeal from the trial court’s judgment signed 20 February 2015.

In the underlying lawsuit, the parties were as follows:

Plaintiff: City of Hempstead

Plaintiff-Intervenor: Citizens Against the Landfill in Hempstead (“CALH”)

Defendants: Waller County; Glenn Beckendorff, in his official capacity as Waller

County Judge; Frank Pokluda, in his official capacity as Waller County

Commissioner; Stan Kitzman, in his official capacity as Waller County

Commissioner; Jeron Barnett, in his official capacity as Waller County

Commissioner; John Amsler, in his official capacity as Waller County

Commissioner; and Pintail Landfill, LLC.

After a jury trial, the parties entered into a settlement agreement that included an

agreed judgment. All parties moved for the trial court to enter the agreed judgment.

At the time the trial court entered judgment, Beckendorff, Pokluda, and Kitzman, had

been succeeded in office by the current Waller County elected officials. See Exhibit

A (Copy of the Waller County website listing its elected officials). 2

The trial court entered judgment on 20 February 2015. Exhibit B. A timely

filed motion for new trial was not filed. Beckendorff filed his notice of appeal more

than 30 days later on 6 April 2015. Exhibit C. Kitzman and Pokluda filed their

notices of appeal on 15 April 2015. Exhibit D.

As the facts above show, there are three grounds for dismissal:

The City of Hempstead requests this Court take judicial notice of the elected officials. The

facts are generally known within the trial court’s territorial jurisdiction.

• The notices of appeal were not timely.

• Appellants are no longer the officials for Waller County and therefore

have no standing to appeal.

• Appellants entered into a settlement agreement and agreed judgment.

They have waived the right to appeal.

II. This Court lacks jurisdiction because no timely notice of appeal was filed.

Appellant Beckendorff’s notice of appeal was not timely. A timely notice of

appeal is a jurisdictional prerequisite to appeal. See Brown Mech. Servs., Inc. v.

Mountbatten Sur. Co., Inc., 377 S.W.3d 40, 42–43 (Tex. App.—Houston [1st Dist.]

2012, no pet.); Quanaim v. Frasco Rest. & Catering, 17 S.W.3d 30, 35 (Tex. App.—

Houston [14th Dist.] 2000, pet. denied). Absent a timely-filed motion for new trial

(or other proper post-trial filing, see Tex. R. App. P. 26.1(a)), a notice of appeal is

due 30 days after the judgment is signed. Tex. R. App. P. 26.1. A motion for

extension of time may be filed within 15 days of the date the notice of appeal was

due. See Tex. R. App. P. 26.3. However, the appellant must “compl[y] with Rule

10.5(b) by, inter alia, providing a reasonable explanation for the late filing.” Brown

Mech., 377 S.W.3d at 42–43 (citing Tex. R. App. P. 26.3, 10.5(b); Jones v. City of

Houston, 976 S.W.2d 676, 677 (Tex. 1998); Verburgt v. Dorner, 959 S.W.2d 615,

617 (Tex.1997)). The failure to provide a reasonable explanation will result in

dismissal. See Walker v. Walker, No. 01-11-00232-CV, 2013 WL 105302, at *2

(Tex. App.—Houston [1st Dist.] Jan. 3, 2013, no pet.) (mem. op.).

A reasonable explanation is “any plausible statement of circumstances

indicating that failure to file within the [specified] period was not deliberate or

intentional, but was the result of inadvertence, mistake or mischance.” Hone v.

Hanafin, 104 S.W.3d 884, 886 (Tex. 2003) (quoting Meshwert v. Meshwert, 549

S.W.2d 383, 84 (Tex. 1977)). The court views the explanation liberally, and “[a]ny

conduct short of deliberate or intentional noncompliance qualifies as inadvertence,

mistake or mischance ....” Hone, 104 S.W.3d at 886–87 (quoting Garcia v. Kastner

Farms, Inc., 774 S.W.2d 668, 670 (Tex. 1989)).

In this case, the trial court signed the Judgment on 20 February 2015. Thirty

days later, 22 March 2015, fell on a Sunday. Notice of appeal was therefore due on

23 March 2015. Beckendorff did not file his notice of appeal until 6 April 2015, the

last day available to file a motion for extension of time. Beckendorff also filed a

motion for extension of time to file his notice of appeal. The motion for extension of

time, however, fails to provide a reasonable explanation. The motion is accompanied

by two affidavits, Beckendroff’s and his counsel’s. Counsel’s affidavit is silent

concerning the reason for filing the notice of appeal late. In his affidavit,

Beckendorff states that his attorney became aware of the 20 February Judgment on

11 March. At that time there were still 12 days to file a notice of appeal. No

explanation is given for the failure to act within the 12 days. Because no reasonable

explanation is given, despite actual notice of the judgment with 12 days left to file a

notice of appeal, Beckendorff’s motion for extension of time fails to comply with

Rules 10.5(b) and 26.3. Beckendorff’s notice of appeal is, therefore untimely. This

Court must dismiss for lack of jurisdiction.

Appellants Pokluda and Kitzman’s notice of appeal is therefore also untimely.

Pokluda and Kitzmann filed their notice of appeal on 15 April, well after the 23

March filing deadline, and also outside of the 15 day window for filing a motion for

extension. However, under Rule 26.1(d), a party may file a notice of appeal outside

of the normal time frame if it is filed “14 days after the first filed notice of appeal” so

long as the first notice of appeal was timely. Tex. R. App. P. 26.1(d). Because

Beckendorff’s notice was not timely, Pokluda and Kitzman’s notice is not either.

Therefore, this Court must dismiss their appeals for lack of jurisdiction.

III. Appellants lack standing because they are no longer the elected officials of

Waller County.

A suit against a governmental official in his official capacity is another way of

pleading a suit against the governmental entity. City of El Paso v. Heinrich, 284

S.W.3d 366, 373 (Tex. 2009) (citing Brandon v. Holt, 469 U.S. 464, 471–72, 105 S.

Ct. 873 (1985) (“[A] judgment against a public servant ‘in his official capacity’

imposes liability on the entity that he represents provided, of course, the public entity

received notice and an opportunity to respond.”); Tex. A & M Univ. Sys. v. Koseoglu,

233 S.W.3d 835, 844 (Tex.2007) (“It is fundamental that a suit against a state official

is merely ‘another way of pleading an action against the entity of which [the official]

is an agent.’ ”) (quoting Kentucky v. Graham, 473 U.S. 159, 165, 105 S. Ct. 3099

(1985)).

When 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 if

appropriate. 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. Substitution may

be ordered at any time, but failure to order substitution of the

successor does not affect the substitution.

Tex. R. App. 7.2(a) (“Automatic Substitution of Officer”); see Abbott v. G.G.E,

03-11-00338-CV, 2015 WL 1968262, at *1 n.1 (Tex. App.—Austin Apr. 30, 2015,

no. pet. h.) (automatic substitution of successors to “former Governor,

Commissioners of HHSC and DADS, and the former Directors of the Austin and

Mexia SSLCs”); City of Houston v. Strouse, No. 14-10-00239-CV, 2011 WL

304185, at *1 n.1 (Tex. App.—Houston [14th Dist.] Jan. 27, 2011, no pet.) (mem.

op.) (automatic substitution of newly appointed chief of police in suit against

former chief in his official capacity).

Because the individuals named as appellants are no longer the elected officials

of Waller County, they have no standing to pursue this appeal. The current officials

are the proper parties. This Court should dismiss or, alternatively, substitute the

proper officials.

IV. Appellants may not appeal a judgment to which they agreed and which

they requested the trial court enter.

“Generally, a party who files a motion for rendition of a judgment waives its

right to complain about that judgment.” Exch., Inc. v. Long., 821 S.W.2d 265, 275

(Tex. App.—Houston [1st Dist.] 1991, writ denied) (citing Litton Indus. Prods., Inc.

v. Gammage, 668 S.W.2d 319, 322 (Tex. 1984)). A party who moves for judgment

and does not reserve the right to complain may not take a position on appeal

inconsistent with that part of the judgment it requested. See Hooks v. Samson Lone

Star, Ltd. P’ship, No. 12-0920, 2015 WL 393380, at *11 (Tex. Jan. 30, 2015)

(citing Diamond Shamrock Ref. Co. v. Hall, 168 S.W.3d 164, 170 (Tex. 2005);

Litton Indus. Prods., Inc. v. Gammage, 668 S.W.2d 319, 321–22 (Tex. 1984)).

The lawyers representing Waller County and its elected officials in their

official capacity signed an agreed judgment and joined in a motion for entry of that

judgment. Exhibit B, Exhibit E. There was no indication that Waller County or its

elected officials disagreed with the judgment or intended to appeal any portion of that

judgment. See Exhibit B, Exhibit E. Appellants did not appear or object during the

hearing on the motion for entry of judgment. Therefore, the elected officials of

Waller County in their official capacity have waived the right to complain of the

agreed judgment on appeal. See Hooks, 2015 WL 393380, at *11; Long, 821

S.W.2d at 275.

PRAYER

The City of Hempstead respectfully requests this Court dismiss this appeal.

Respectfully submitted,

OLSON & OLSON, L.L.P.

By: /s/ Eric C. Farrar

Eric C. Farrar

State Bar No. 24036549

efarrar@olsonllp.com

Wortham Tower, Suite 600

2727 Allen Parkway

Houston, Texas 77019

Telephone: (713) 533-3800

Facsimile: (713) 533-3888

ATTORNEYS FOR APPELLEE

CERTIFICATE OF CONFERENCE

The undersigned conferred appellate counsel of record as follows:

David Carp, counsel for appellants – letter faxed and emailed on 15 May; email on 3

June. Counsel for appellants has not indicated whether appellants oppose this motion

or not.

Brent Ryan, counsel for Pintail Laindfill, LLC – email on 3 June and phone call on 5

June. Counsel for Pintail has not indicated whether Pintail opposes this motion or

not.

Elton Mathis, counsel for Waller County, county judge, in his official capacity, and

county commissioners, in their official capacities, indicated that he agrees to the

relief sought in this motion.

Blayre Pena, counsel for CALH, indicated that CALH agrees to the relief requested.

/s/ Eric C. Farrar

Eric C. Farrar

CERTIFICATE OF SERVICE

I hereby certify that on June 5, 2015 a true and correct copy of the foregoing

Notice of Appearance of Appellate Counsel for Appellee was served via e-service:

David A. Carp Ms. Carol Chaney

Herzog & Carp Law Office of Carol A. Chaney

427 Mason Park Boulevard 820 13th Street

Katy, Texas 77450 P.O. Box 966

Facsimile (713) 781-4797 Hempstead, Texas 77445

Facsimile (979) 826-6637

Attorney for Appellant E-Mail:

carol.chaney@thechaneyfirm.net

Attorneys for Citizens

Against the Landfill in Hempstead

Mr. Brent W. Ryan Ms. V. Blayre Pena

McElroy, Sullivan, Miller, Hance Scarborough, LLP

Weber & Olmstead, L.L.P. 400 W. 15th Street, Suite 950

P.O. Box 12127 Austin, Texas 78701

Austin, Texas 78711 Facsimile (512) 482-6891

Facsimile (512) 327-6566 E-Mail: bpena@hslawmail.com

E-Mail: bryan@msmtx.com

Attorneys for Citizens

Attorney for Pintail Landfill, LLC Against the Landfill in Hempstead

Elton R. Mathis, Jr.

Waller County District Attorney

Ruhee G. Leonard

Assistant District Attorney

645 12th Street

Hempstead, Texas 77445

Facsimile: (979) 826-7722

E-Mail: e.mathis@wallercounty.us

Attorney for Waller County,

Texas

/s/ Eric C. Farrar

Eric C. Farrar

UNSWORN DECLARATION OF ERIC C. FARRAR

My name is Eric Clayton. Farrar, my date of birth is 30 October 1970, and

my address is 1304 W. Gray St., #527, Houston, Texas, 77019, United States of

America. I declare under penalty of perjury that the following statements are true

and correct.

1. Exhibit A is a true and correct copy of a printout of Waller County’s

website.

2. Exhibit B is a true and correct copy of the agreed judgment in this

cause.

3. Exhibit C is a true and correct copy of appellant Beckendorff’s notice

of appeal.

4. Exhibit D is a true and correct copy of appellants Kitzman and

Pokluda’s notice of appeal.

5. Exhibit E is a true and correct copy of the joint motion for entry of

judgment filed with the trial court in this cause.

Executed in Harris County, State of Texas, on the 5th day of June, 2015.

/s/ Eric C. Farrar

Eric C. Farrar

Declarant

6/4/2015 default.aspx.html

1-1o1nc 1CuntJcl Us Search

Home

F'~nancial Transparency Elected Officials Co' tact List

Public Information Request Waller County Elected Officials Contact list

Elected Officials Contact List

Commissioner Pet 1 John A. Amsler 0 - 979-826-7700

Public Notices, News & Forms

P 0 Box 648 F -979-826-2112

County Offices

Hempstead, Tx. 77445

District Court

Commissioner Pet 2 Russell Klecka 0 - 979-826-7700

Other County Offices

25442 Curtis Rd F -979-826-2112

Employment Opportunities

Waller, Tx 77484

Commissioner Court Videos/Archives Commissioner Pet 3 Jeron Barnett 0 - 979-826-7700

Minutes P 0 Box 2846 12620 FM 1887 F -979-826-2112

Waller County Sub-Regional Prairie View, Tx. Hempstead, TX

Planning Commission 77446 77445

Landfill Related Information Commissioner Pet 4 Justin Beckendorff 0-281-375-5231

Contribution & Expense Reports P 0 Box 7 3410 First St. F- 281-375-7751

Independent School District Pattison, Tx 77466 Pattison, TX 77466

Libraries Constable, Pet. 1 Bo Hashaw 0 - 979-826-3357

Museums 846 6th St. Ste 1

Hempstead, Tx 77445

Geographical

Constable, Pet 2 Glenn White 0-936-931-1914

History

27390 Fieldstore Rd F - 936-372-9234

Calendar

Waller, Tx 77484

Justice of the Peace

Constable, Pet 3 Herschel Smith 0 - 979-826-7635

Waller County Ordinances

12620 FM 1887 F -979-826-7639

Animal Control

Hempstead, Tx 77445

Estray Livestock Constable, Pet 4 Joel Trimm 0 281-375-5233

Road and Bridge P 0 Box 389 3410 First St.

Recycle Center Pattison, Tx 77466 Pattison, TX 77466

Veteran's Office County Clerk Debbie Hollan 0 • 979·826-7711

Section 3 Information Room 217 -Main Ofc 836 Austin St. Hempstead F- 979-826-7771

Room 213 - Civil Hempstead, TX 77445

County Court at Law June Jackson -

0 - 979-826-7763

Judge

Room 216 836 Austin St. F- 979-826-9119

Hempstead, TX 77445

County Judge Trey Duhon -Judge 0 - 979-826-7700

Room 203 836 Austin St. F- 979-826-2112

Hempstead, TX 77445

Elton Mathis-District

District Attorney 0-979-826-7718

Attorney

645 12th Street F - 979-826-7722

Hempstead, Tx 77445

file:/1/C :IU sers/efarrar /D ocuments/default.aspx. htm I 1/2

EXHIBIT A

6/4/2015 default.aspx.html

District Clerk Liz Pirkle, District Clerk 0 • 979-826-7735

Room 318 836 Austin St. F - 979-826-7738

Hempstead, TX 77445

506th District Judge A M McCaig -Judge 0-979-921-0921

Room 307 836 Austin St. F - 979-826-9149

Hempstead, TX 77445

Justice of the Peace Charles Karisch-Judge 0-979-826-7745

Precinct 1 846 6th St. Ste 1 F - 979-826-7748

Hempstead, Tx 77445

Justice of the Peace Delores Hargrave-Judge 0-936-372-2193

Precinct 2 27388 Fieldstore Rd F - 936-931-5206

Waller, Tx 77484

Justice of the Peace Marian Jackson-Judge 0 - 979-826-7637

Precinct 3 12620 FM 1887 F - 979-826-7639

Hempstead, Tx 77445

Justice of the Peace Ted Krenek- Judge 0-281-375-5233

3410 1st St/ P 0 Box 7

Precinct 4 3410 First St. F- 281-375-7757

(Mail)

Pattison, Tx 77466 Pattison, TX 77466

Treasurer Joan Sargent

0-979-

826-7707

Room 316 836 Austin St.

Hempste~d, TX 77445 F - 979-826-7709

Tax Assessor Ellen Shelburne 979-826-7620

730 9th St

Hempstead, Tx 77445 Fax 979-826-7619

Sheriff Glenn Smith 979-826-8282

701 Calvit Street

Hempstead, Tx 77445 Fax 979-826-7667

file:/1/C:/Users/efarrar/Documents/default.aspx.html 212

Filed: 41212015 10:57:27 AM

Uz Pirkle, Dlstr!ct Clerk

Waller County, Texas

By: Janie Derrick, Deputy

CAUSE NO. 13-03-21872

CITY OF HEMPSTEAD, TEXAS § IN THE DISTRICT COURT OF

Plaintiff, §

and §

CITIZENS AGAINST THE LANDFILL § WALLER COUNTY, TEXAS

IN HEMPSTEAD §

v. §

WALLER COUNTY, TEXAS, et al., §

Defendants. § 506'h JUDICIAL DISTRICT

NOTICE OF APPEAL

Glenn Beckendorff, in his official capacity as Waller County Judge (Appellant),

desires to appeal and hereby files this notice with the Court of Civil Appeals for the

First or Fourteenth Judicial District of Texas, sitting at Houston, Texas from the

Agreed Final Judgment signed in the above Cause on February 20, 2015, and

Appellant desires to appeal from each and every part of said Agreed Final

Judgment.

Dated: April 2, 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 Appellant

EXHIBIT ___C,

CERTIFICATE OF SERVICE

I hereby certify that on April 2, 2015 a true and correct copy of the foregoing

Notice of Appeal was delivered via e-service to the following:

James P. Allison

J. Eric Magee

Allison, Bass & Magee, LLP

A. 0. Watson House

402 W. 12'h Street

Austin, Texas 78701

Attorneys for Waller County, Texas and

Waller County Commissioners Court

Arthur L. Pertile Ill

Kelly Dempsey

Corey R. Ouslander

Olson & Olson, LLP

Wortham Tower, Suite 600

2727 Allen Parkway

Houston, Texas 77019

Attorneys for City of Hempstead

Terry L. Scarborough

Michael L. Woodward

V. Blayre Pena

Hance Scarborough, LLP

400 w 15'h #950

Austin, Texas 78701

Carol A. Chaney

Law Office of Carol A. Chaney

820 13'h Street

P.O. Box 966

Hempstead, Texas 77445

Attorneys for Citizens Against the Landfill

In Hempstead

Brent W. Ryan

McElroy, Sullivan & Miller, LLP

P.O. Box 12127

Austin, Texas 78711

Attorneys for Pintail Landfill, LLC

lsi David A. Carp

David A. Carp

Cause No. 13-03-21872

CITY OF HEMPSTEAD, TEXAS § IN THE DISTRICT COURT OF

Plaintiff, §

and §

CITIZENS AGAlNST THE LANDFILL § WALLER COUNTY, TEXAS

IN HEMPSTEAD §

v. §

WALLER COUNTY, TEXAS, ET. AL. §

Defendants. § 506™ JUDICIAL DISTRICT

AGREED FINAL JUDGMENT

Before the Court is the above-styled and numbered cause of action. On December 1,

2014, the case was called for trial. Plaintiff City of Hempstead ("Hempstead") appeared through

its attorney of record and announced ready for trial. Plaintiff-Intervenor Citizens Against the

Landfill in Hempstead ("CALH'') appeared through its attorney of record and announced ready

for trial. Defendants, Waller County, Texas including the elected officials of the Waller County

Commissioners Court, in their official capacities (collectively "Waller County"), appeared in

person and by their attorney of record and announced not ready for trial. Defendant, Pintail

Landfill, LLC, ("Pintail") appeared in person and by its attorney of record and announced not

ready for trial. After denying the Motions to Abate and Requests for Continuance, a jury,

consisting of 12 qualified jurors having been previously demanded, was duly empanelled and the

case proceeded to trial.

Agreed Final Judgment Page 1

The Court, after examining the record and the evidence and argument of counsel, finds

that venue is proper in Waller County, that the Court has jurisdiction over the subject matter and

the parties in this case, and that the Court has jurisdiction to enter a judgment in this case.

At the conclusion of the evidence, the Court submitted the questions of fact in the case to

the jury. The charge of the Court and the verdict of the jury are incorporated for all purposes by

reference, and attached hereto as Exhibit 1. The Parties also entered into certain Stipulations of

Fact, which are incorporated for all purposed by reference, and attached hereto as Exhibit 2.

Following the verdict of the jury of December 18, 2014, Hempstead, CALH, Pintail

Landfill and Waller County filed a Joint Motion for Entry of Agreed Final Judgment. In said

Motion, the parties represent that they have reached a settlement agreement concerning the jury

verdict and the remaining legal and factual issues pending before the Court and have agreed to

the entry of final judgment.

Accordingly, the Court renders the following Agreed Final Judgment:

IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that Waller County

Ordinance No. 2013-001 is void.

IT IS FURTHER ORDERED that the Host Agreement between Waller County, Texas,

and Pintail Landfill, LLC is void.

IT IS FURTHER ORDERED that Plaintiff City of Hempstead have and recover from

Waller County attorneys' fees in the amount of Two Hundred Forty-Five Thousand Dollars and

no cents ($245,000).

IT IS FURTHER ORDERED that Plaintiff-Intervenor Citizens Against the Landfill in

Hempstead have and recover from Waller County attorneys' fees in the amount of Three

Hundred Twenty-Five Thousand Dollars and no cents ($325,000).

Agreed Final Judgment Page 2

13 ~tJ? _,?/872-

IT IS FURTIIER ORDERED that the total amount of the judgment rendered will bear

interest at a rate of Five Percent (5%) per annum from the date of this judgment until paid in full.

Pursuant to the terms of the parties' settlement agreement giving rise to this Agreed Final

Judgment, the parties do not present to this Court for adjudication, and this Court does not adjudicate,

any issue concerning any claim, defense, or assertion, whether one or more, that has been or may in

the futnre be raised in any forum, regarding the validity of Waller County Ordinance No. 2011-001

and/or its applicability to (a) Texas Commission on Environmental Quality MSW Registration No.

40259 (Pintail Landfill Transfer Station), (b) Texas Commission on Environmental Quality MSW

Permit Application No. 23 77 (Pintail Landfill), and/or (c) all or any part of the 410.3 7 acre facility

site described in such Registration and Permit Application.

All costs of court spent or incurred in this cause are to be borne by the party incurring

same. All writs and processes for the enforcement and collection of this judgment may issue as

necessary.

All other relief requested in the live pleadings of any party that is not specifically granted

is DENIED. This is a final judgment that disposes of all claims and parties.

SIGNED thistZ(2 day of __ 7:+

~- "',&"- vr:- &_"-r_: :~: ;," "'zol5.

""'

TERRY~~~~[}jN <.n

::-,--

Agreed Final Judgment Page 3

AGREED AS TO FORM AND SUBSTANCE:

ArtPertile

Corey R. Ouslander James P. Allison

couslander@olsonl!p. com J. Eric Magee

OLSON & OLSON, L.L.P. e.magee@allison-bass.com

Wortham Tower, Ste. 600 Allison, Bass & Associates, LLP

2727 Allen Parkway 402 W. 12th St.

Houston, Texas 77019 Austin, Texas 78701

Phone: (713) 533-3800 Phone: (512) 482-0701

Facsimile: (713)533-3888 Facsimile: (512)480-0902

ATTORNEY OR CITY OF HEMPSTEAD ATTORNEYS FOR WALLER COUNTY

DEFENDANTS

By:J.~M~~

V. Blayre Pefia Brent Ryan

bpena@hslawmail.com bryan@msmtx.com

Hance Scarborough McElroy, Sullivan, Miller,

400 W. 15th Street, Ste. 950 Weber & Olmstead, L.L.P.

Austin,Texas78701 P.O. Box 12127

Phone:512-479-8888 Austin, Texas 78711

Fascimile: 512-482-6891 fax Phone: (512) 327-8111

Facsimile: (512)327-6566

Carol Chaney ATTORNEYS FOR PINTAn, LANDFILL, LLC

Carol.chaney@thechaneyfirm.net

Law Office of Carol A. Chaney

820 13th Street

P.O. Box966

Hempstead, TX 77445

Phone: (979) 826-6660

Fascimile: (979) 826-8989

ATTORNEYS FOR INTERVENORS/CITIZENS

AGAINST LANDFILL

By: /}{5~~

(/ c

Agreed Final Judgment Page 4

rueu r" • • ., r

AT o;

07 O'Clock f' M

PATRICIA JAMES SPADACHENE

BYWALL~ TEXAS

DEPUTY

CAUSE NO. 13-03-21872

CITY OF HEMPSTEAD, Texas, § IN THE DISTRICT COURT OF

Plaintiff §

And §

CITIZENS AGAINST THE LANDFll.L IN §

HEMPSTEAD, §

Plaintiff Intervenor §

v. § WALLER COUNTY, TEXAS

WALLER COUNTY, TEXAS, COUNTY §

mDGB BLENNBECKENDORFF, §

COMMISSIONER FRANK POKLUDA, §

COMMISSIONER STAN KITZMAN, §

COMMISSIONER JERONBARNET, §

COMMISSIONER JOHN AMSLER, and § 50611 JUDICIAL DISTRICT

PINTAIL LANDFILL, LL.C. §

Defendants. §

CHARGE OF THE COURT

MEMBERS OF THE JURY:

After closing arguments, you will go to the jury room to decide the case, answer the

questions that are attached, and reach a verdict. You may discuss the case with other jurors only

when you are all together in the jury room.

TI:ris case is submitted to you by asking questions about the facts, which you must decide

from the evidence you have heard in this trial. You are the sole judges of the credibility of the

witnesses and the weight to be given their testimony, but in matters of law, you must be

governed by the instructions in this charge. In discharging your responsibility on this jury, you

will observe all the instructions which have previously been given you. I shan now give you

additional instructions which you should carefully and strictly follow during your deliberations.

Remember my previous instructions: Do not discuss the case with anyone else, either in

person or by any other means. Do not do any independent investigation about the case or

conduct any research. Do not look up any words in dictionaries or on the Intemet. Do not post

information about the case on the Internet. Do not share any special knowledge or experiences

with the other jurors. Do not use your phone or any other electronic device during your

deliberations for any reason, without permission from the Court. When you enter the jury room

to deliberate, you must surrender your phone and any other electronic device.

Any notes you have taken are for your own personal use. You may take your notes back

into the jury room and consult them during deliberations, but do not show or read your notes to

your fellow jurors during your deliberations. Your notes a:re not evidence. Each of you should

rely on your independent recollection of the evidence and not be influenced by the fact that

another juror has or has not taken notes.

You must leave your notes with the bailiff when you are not deh'berating. I will make

sure your notes are kept in a safe, secure location and not disclosed to anyone. After you

complete your deliberations, the baillff will collect your notes, unless you choose to keep them.

When you are released from jury duty, the bailiff will promptly destroy your notes, unless you

have retained them, so that no one can read what you wrote.

Here are the instructions for answering the questions.

1, Do not let bias, prejudice or sympathy play any part in your decision.

2. .Base your answers only on the evidence admitted in court and on the law that is in

these instructions and questions. Do not consider or discuss any evidence that was not admitted

in the courtroom.

3. You are to make up your own minds about the facts. You are the sole judges of

the credibility of the witnesses and the weight to give their testimony, But on matters of law,

you must follow all of my instructions.

4. If my instructions use a word in a way that is different from its ordinary meaning,

use the meaning I give you, which will be a proper legal definition.

5. All the questions and answers are important. No one should say that any question

or answer is not important

6. Answer "yes" or "no" to all questions unless you are told othenvise. A "yes"

answer must be based on a preponderance of the evidence. Whenever a question requires an

answer other than "yes" or "no," your answer must be based on a preponderance of the evidence.

The term "preponderance of the evidence" means the greater weight of credible evidence

presented in this case, If you do not find tba:t a preponderance of the evidence supports a "yes"

answer, then answer "no." A preponderance of the evidence is not measured by the number of

witnesses or by the number of documents admitted in evidence, For a fact to be proved by a

preponderance of the evidence, you must find that the fact Is more likely true than not true.

A fact may be established by direct evidence or by circumstantial evidence or both, A

fact is established by direct evidence when proved by documentary evidence or by witnesses

who saw the act done or heard the words spoken. A fact is established by circumstantial

evidence when it may be fairly and reasonably inferred from other facts proved,

7. Do not decide who you think should win before you answer the questions and

then just answer the questions to match your decision. Answer each question carefully without

considering who will win. Do not discuss or consider the effect your answers will have.

8. Do not answer questions by drawing straws or by any method of chance.

9. Do not trade your answers. For example, do not say, ''I will answer this question

your way if you answer another question my way."

10. The answers to the questions must be based on the decision of at least 10 of the 12

jurors. The same 10 jurors must agree on every answer. Do not agree to be bound by a vote of

anything less than 10 jurors, even if it would be a majority.

As I have said before, if you do not follow these instructions, it will be juror misconduct,

and I might have to order a new trial and start this process over again. 'This would waste your

time and the parties' money, and would requlre the taxpayers to pay for another trial. If a juror

breaks any of these rules, tell thai person to stop, and if such juror fails to do so, report it to the

Court.

.. , .........,

DEFJNITIONS & INS'IRUCTIONS

In answering the questions below; please follow these <;lefinitiom and instructions.

1. The t= ''Waller County" includes the Waller County Commissioners Court,

Judge Glenn Beckendorff and Waller County Commissioners Frank Pokluda, Stan Kitzman,

Jeron Barnett, and John Amsler.

2. Waller County is a governmental body.

3. All questions for the Jury relate to the thne period on or before February 13, 2013.

.. , .. ,

DEFINITIONS AND INSTRUCTIONS FOR QUESTION NUMBERS 1. 2, 3, AND 4

1. A governmenial body may consult with its attorney in executive session to discuss

the legal issues raised in connection with a proposed contract or a proposed ordinance, but it may

not discuss non-legal matters.

a. ''Non-legal matters" include but are not limited to: (1) merits of enacting

an ordinance; (2) merits of a proposed contract; (3) financial

considerations of a proposed contract; or (4) matters of public policy; or

(5) merits of an application.

b. Legal issues include advice given to Waller County regarding the legal

rami:ficatioru of facts and information and the legality of a proposed

contract or proposed ordinance.

2. ''Deliberation" means a verbal exchange during a meeting between a quorum of a

govemmental body, or between a quorum of a governmental body and another person,

concerning an issue within the jurisdiction of the governmental body or any public business.

3, ((Meeting" means!

a. A deliberation between a quorum of a govemmenial body or between a

quorum of a govemmenial body and another person, during which public

business or public policy over which the governmental body has

supervision or control is discussed or considered or during which the

govemmental body takes formal action, or

b. A gathering:

i. That is conducted by the governmental body;

ii. At which a quorum of members of the governmental body is

present;

ill. That has been called by the govemmental body, and;

iv, At which the members receive information from, give information

to, ask questioru of, or receive questions from any third person,

including an employee of the governmental body, about the public

business or public policy over which the governmental body has

supervision or control.

4. "Closed Meeting" mearu a meeting to which the public does not have access.

5. "Quorum" means a majority of a governmental body.

6. A "walking quorum" occurs when members of a governmental body gather in

numbers that do not physically constitute a quorum at any one time but who,

through successive gatherings, secretly, and intentionally, discuss a public matter

witb a quorum of that body at a place other than a posted meeting.

..._,.,

·;..__

QUESTION NUMBER 1

Do you find that the Waller County Commissioner's Court deliberated non-legal matters

relating to Ordinance 2013-001 in a closed meeting?

Answer: -.::;~;)''e-"---S_ _ ("Yes" or "No")

QUESTION NUMBER 2

Do you find that the Waller County Commissioner's Court deliberated non-legal matters

relating to the Host Agreement in a closed meeting?

Answer: g-e) ("Yes" or "No")

'"'I

QUESTION NUMBER 3

Do you find that at least three (3) members of the Waller County Commissioners Court

engBtled in a walking quorum related to the following items below?

(a) Host Agreement

(b) Ordinance 2013-901

·-~

QUESTION NUMBER 4

"Negotiate" means to try to reach an agreement or compromise by discussion with others.

Do you :find that one or more members of the Waller County C,ommissioners Court acted

as a committee, authorized by at least three (3) members of the Commissioners Court, to

negotiate the terms of the following items before presentation to the Waller County

Commissioners Court for a vote?

Answer "Yes" or ''No" for each of the following.

(a) Host Agreement Answer: _____j-r=-eS""-___ ("Yes" or ''No'~

(b) Ordinance 2013-001 Answer: -F~~e,;;,L--- ("Yes" or ''No")

,, ,,, 'l ··.·.···--·- ... 1 ... - ..... ,.,

If you answered "yes" to Question Number 4(a) or 4(b), answer Question Number¢5,

otherwise, do not answer Question Number 5.

QUESTION NUMBERS

Do you find that there were any committee meetings held that were not open to the public

relating to the following?

(a) Host Agreement Answer: -i~:'-1-'5'-..L--- ("Yes" or "No")

(b) Ordinance 2013-001 Answer: --i~:!.·""f'...>-5--- ("Yes" or "No")

' ........ .

If you answered "yes" to Question Number 4(a) or 4(b), answer Question Number 6,

otherwise, do not answer Question Number 6 and proceed to Questien Number 7.

INSTRUCTION FOR QUESTIONNOMIIER 6

A "rubber stB:rnp" occurs when a committee's recommendations are approved without

meaningful discussion.

QUESTION NUMBER 6

Do you find that the Commissioners' vote at the Feb!)lary 13, 2013 open meeting was a

rubber stamp of the following items?

Host Agreement Answer: ....,;~!lr'--P-"$'-----<"Yes" or "No")

Ordinance 2013-001 Answer: ----:oL\~e:...;s,____ ("Yes" or ''No")

INSTRUCTION FOR QUESTION NUMBERS 7 THROUGH 9

Public infonnation means information 1hat is written, produced, collected, assembled, or

maintained under a law or ordinance or in connection with the transaction of official business.

Public Information includes all documents, regardless of physical form or characteristics, created

or received by Waller County in the transaction of public business. Public information includes,

but is not limited to, e-mails, text messages, and other electronic recordings.

Waller County is required to preserve and manage its Public Information in accordance

with applicable rules and laws governing the destruction and other disposition of state and local

government records or Public Information.

Each Waller County Commissioner and the Waller County Judge is the officer for public

information and the custodian of the information created or. received by that county

commissioners' office. Waller County or the elected county officer for information of that

elective county office may determine a time for which information 1hat is not currently in Use

will be preserved, subject to any applicable rule or law governing the destruction and other

disposition of state and local gove=ent records or public information.

A£ an officer for public information, each Waller County Commissioner or County

Judge is responsible for the release of public information. Each is required to: (1) make public

informa;tion available for public inspection and copying; (2) carefully protect public information

from deterioration, alteration, mutilation, loss, or unlawful removal; and (3) repair, renovate, or

rebind public information as necessary to maintain it properly.

Each officer for public information is required to prom:in.ently display a sign containing

basic information about the rights of a requestor, the responsibilities of a govemmental body, and

the procedures for inspecting or obtaining a copy of public information. The officer shall display

the sign at one or more places in tbe administrative offices of the gove=ental body where it is

plainly visible to members of the public and employees of the governmental body whose duties

include receiving or responding to requests under this chapter.

A£ officers for public information, Waller County Commissioners and the Waller County

Judge must promptly produce public information for inspection, duplication, or bath upon

request by any person for public information: ''Promptly" means as soon as possible under the

circumstances, that is, within a reasonable time, without delay. If an officer for public

information cannot produce public inforin.ation for inspection or duplication within 10 business

days after the date the information is requested, the officer must certify 1hat fact in writing to the

requestor and set a date and hour within a reasonable time when the information will be available .

for inspection or duplication.

QUESTION NUMBER 7

Do you find that County Judge Glenn Beckeodorff failed to comply with any of the

following?

(a) Protecting public information from deterioration, alteration, mutilation, loss, or

unlawful removal;

(b) Displaying a sign containing basic information about the rights of a requestor, the

responsibilities of a governmental bqdy, and the procedures for inspecting or

obtaining a copy of public .information at one or more places in the administrative

offices of the governmental body where it is plainly visible to members of the public

and employees of the governmental body;

request by any person for public information;

(d) Certifying in writing to the requestor withln 10 business days after the date the

information was requested, that public information requested could not be produced

for inspection or duplication;

(e) Notifying ihe requestor within 10 business days after the request of a date and hour

withln a reasonable time when ihe information would be available for inspection or

duplication to the requestor.

Answer: 8~5 ("Yes" or "No")

QUESTION NUMBER 8

Do you find that Waller County Precinct Two Commissioner Frank Pokluda failed to

comply with any of the following?

(a) Protecting public information from deterioration, alteration, mutilation, loss, or

unlawful removal;

(b) Displaying a sigo containing basic information about the rights of a requestor, the

responsibilities of a gove=ental body, and the pmc<;>dures . for inspecting or

obtaining a copy of public information at one or more places in the administrative

offices of the gove=ental body where it is plainly visiple to members of the public

and employees of the gove=ental body;

request by any person for public information;

(d) Certifying in writing to the requestor within 10 business days after the date the

information was requested, that public information requested could not be produced

for inspection or duplication;

(e) Notifying the requestor within 10 business days after the request of a date and hour

within a reasonable time when the information would be available for inspection or

duplication to the requestor.

Answer: -~..::g."'..e:_,)_ _ _ ("Yes" or "No")

01JESTIONNUMBER 9

Do you find that Waller County Precinct Four Commissioner Stan Kitzman failed to comply with

any ofthe following?

(a) Protecting public information from deterioration, alteration, mutilation, loss, or

unlawful removal;

(b) Displaying a sign containing basic information about the rights of a requestor, the

responsibilities of a governmental body, and the procedures for inspecting or

obtaining a copy of public information at one or more places in the administrative

offices of the governmental body where it is plainly visible to members of the public

and employees of the governmental body;

request by any person for public information;

(d) Certifying in writing to the requestor within 10 business days after the date the

information was requeS"!ed, that public information requested could not be produced

for inspection or duplication;

(e) Notifying the requestor within 10 business days after the request of a date and hour

within a reasonable time when the information would be available for inspection or

duplication to the requestor.

Answer: --:~3--"-e'"""s'---- ("Yes" or "No")

After you retire to the jury room, you will select your ownpresidiDgjuror. The first thing

the presiding juror will do is to have this complete charge read aloud and then you will deliberate

upon your answers to the questions asked.

It is the duty of the presidiDg juror-

1. to preside during your deliberations,

2. to see that your deliberations are conducted in an orderly manner and ln

accordance with the instructions in this charge,

3, to write out and hand to the bailiff any communications concerning the

case that you desire to have delivered to the judge,

4. to vote on the questions,

5. to write your answers to the questions in the spaces provided, and

6. to certify to your verdict in the space provided for the presiding juror's

signature or to obtain the signatures of all the jurors who agree with the

verdict if your verdict is less than unaniroous.

You should not discuss the case with anyone, not even with other members of the jury,

unless all of you are present and assembled in the jury room. Should anyone attempt to talk to

you about the case before the verdict is returned, whether at the courthouse, at your home, or

elsewhere, please inform the judge of this fact.

If you have a question, you must submit such question in writing to the Court. The

Presiding Juror must write out the question, sign same and hand the note to the Bailiff, who will

present it to the Couri:. Do not discuss _the question with the Bailiff.

When you have answered all the questions you are required to answer under the

instructions of the judge and your presidiDg juror has placed your answ'ers in the spaces provided

and signed the verdict as presiding juror or obtained the signatures, you will inform the bailiff at

the door of the jury room that you have reached a verdict, and then you will retum into co

with your verdict

··-· ~-~ · ........,,_........ -~-~-, .. ___ ....... '" .... ,...-.. ~"'•

Certificate

We, the jury, have answered the above and foregoing questions as herein indicated, and

herewith retum same into court as our verdict.

(To be signed by the presiding juror if th~j)Jl'y'"ls 1l1lllnlmous.)

Verd ..y tJf r

PRESIDJNG JUROR

Printed Name ofPresiding Jur~ ·'2--

1/l(Jic.,..'f- l~ u

(To be signed by those rendering fue verdict if the)mY is not unanimous.)

Jurors' Printed Names

Ckas-< es b. s~~ f.! JJ. -e(.;"z.,

J/llct-f fl:£ \ fA . /.. {HJ /'101'/

~<~ Beq>J

Sc.o-rt' M r kP.c-""7, ~ '("7;

Ko&ert L, [JJ?.'!'ic. k.

3 l4l ·~ L;,}c•S

CAUSE NO. 13-03-21872

ClTY OF HEMPSTEAD, Texas, § 1N THE DISTRICT COURT OF

Plaintiff §

And §

CmzENS AGAINST THE LANDFILL IN §

HEMPSTEAD, §

Plaintiff Intervenor §

v. § WALLER COUNTY, TEXAS

WALLER COUNTY, TEXAS, COUNTY §

JUDGE BLENN BECKENDORFF, §

COMMISSIONER FRANK POKLUDA, §

COMMISSIONER STAN KITZMAN, §

COMMISSIONER JERON BARNET, §

COMMISSIONER JOHN AMSLER, and § 506tb JUDICIAL DISTRICT

PJNTA!L LANDFILL, L.L.C. §

Defendants. §

AGREED STII'ULATIONS OF FACT

COMES NOW Plainti:ff City of Hempstead, Plaintiff Intervenor Citizens Against

the Landfill in Hempstead, and Defendants Waller County, Texas, County Judge Glenn

Beckendorff, Commissioner Frank Pokluda, Commissioner Stan J(jtzman, Commissioner

Jeron Barnett, Commissioner John Amsler, and Pintail Landfil~ LLC and presents these

Agreed Stipulations of Fact to the Court. The Parties agTee that the existence of such

stipulations shall not be published to the Jury or mentioned In argument before the jury.

I. Agreed StipulatioiJIS of Fact Regarding Collltraet Exception to Open Meetings

Act, Texas Government Code§ 551.0725.

Waller County Commissioners Court did not invoke Texas Government Code

§ 551.0725 (relating to Deliberation Regarding Contract Being Negotiated) to entet

executive session or closed meeting on February 13, 2013, January 2, 2013, or December

/}_A~~~~ j;J,/7,/!f

~ 5''13

AGREED STJPLJLATIONS OF FACT

1/h

·I

I .

;, Page 1 of3

(Etz ,e.'f /i&/J/11 /("'// tf!F!!~~~~~

._Jt{d7f' iJ/c<'fi;~l'fj EXHIBIT

I c2

19, 2012. The Waller County agenda notices and minutes for these meetings do not

claim Texas Government Code§ 551.0725 as authority for entering executive session.

Further, Waller County Commlssioners Court did not meet any of the

requirements to deliberate business or financial Issues relating to a contract being

negotiated, whlch are enumerated in Texas Government Code § 551.0725. Specifically,

(1) the Waller County Commissioners Court did not vote lll!animously that deliberation

would have a detrimental effect on the position of the Commissioners Court in

negotiating with a third person before conducting the closed meeting; (2) the attorney

advising the Waller County Commissioners Court did not issue a written determination

that deliberation in an open meeting would have a detrimental effect on the position of

the Commissioners Court in negotiating with a third person before conducting the closed

meeting; and (3) the Waller County Commissioners Court did not make a tape recording

of the closed meeting.

ll. Agreed Stipulation of Fact Regarding ExtraterritGrial Jurisdiction of City of

Hempstead.

The Ordinance 2013-001 authorizes and allows disposal of solid waste within

certain areas of the City of Hempstead's extraterritorial jurisdiction ("ETJ"). Those

certain areas consist of the areas described in Exhibit A of Ordinance 2013-001 that are

within one mile offue city limits of the City of Hempstead.

ill. Agreed Stipulation of Fact that the Host Agreement ill a Contract.

The Host Agreement is a contract.

AGREED STIPULATIONS OF FACT Page 2 of3

Agreed:

Kelly Dempsey J. Eric Magee

Kdempsey@olsonJlp.com e.magee@allison-bass.com

Corey R. Ouslander Allison, Bass & Associates, LLP

cous1ander@olsonJlp.com 402 W. 12lh St

OLSON & OLSON, L.L.P. Austin, Texas 78701

Wortham Tower, Ste. 600 Phone: (512)482-0701

2727 Allen Parkway Facsimile: (512)480-0902

Houston, Texas 77019 ATTORNEYS FORWALLER COUNTY

Phone: (713) 533-3800 DEFENDANTS

Facsimile: (713)533-3888

AtTORNEYS OR CITY OF HEMPSTEAll

By:_-"'-of~.c;q,L'ti~~u::___:~_::---_::~

V. Blayre Peiia Brent Ryan

bpena@hslawmail.com bzyan@msm1X.com

Wesley P. McGuffey McElroy, Sullivan, Miller,

wmcguffey@hslawmail.com Weber & Ohnstead, L.L.P.

Hance Scarborough, LLP P.O. Box 12127

400 W. 15th Street, Ste. 950 Austin, Texas 78711

Aus1in, Texas 78701 Phone: (512) 327-8111

Phone: 512-479-8888 Facsimile: (512)327-6566

Facsimile: 512-482-6891 fax ATIORNEYSFORPINTAILLANDFILL,LLC

Carol Chaney

Carol.chaney@thechaneyfirrn.net

Law Office of Carol A. Chaney

820 13th Street

P.O. Box.966

Hempstead, TX 77445

Phone: (979) 826-6660

Facsimile: (979) 826-8989

AtTORNEYS FOR

INTERVENORS/CrrrZENS AGAINST

LANDFILL

AGREED S'ITPULATlONS OFFACT Page 3 of3

CLERK'S NOTICE OF APPEAL

TRIAL COURT# 13-03-21872

COURT OF APPEALS# 14-15-00322-CV

IN THE 506m DISTRICT COURT

WALLER COUNTY, TX

ASSIGNED TO FOURTEENTH COURT OF APPEALS

CITY OF HEMPSTEAD, TEXAS § IN THE DISTRICT COURT

AND

CITIZENS AGAINST THE §

LANDFILL IN HEMPSTEAD

§ WALLER COUNTY

vs.

WALLER COUNTY, TEXAS

ETAL § 506TH JUDICIAL DISTRICT

Note: Original Notice of Appeal was sent on

416/15 for Appellant Glenn Beckendorff In his Ojjlclal

Capacity as Waller County Judge and the

following Appellants are being added:

Appellants Frank Pokluda, in his Official Capacity

as Waller County Precinct Two Commissioner

Stan Kitzman, in his Official Capacity

As Waller County Precinct Four Commissioner

Appellants' Attorney David A. Carp, State Bar No. 03836500

427 Mason Park Boulevard

Katy, TX 77450

Phone: 713-781-7500

Fax: 713-781-4797

Court 506ili Judicial District

Judge Hon. Terry Flenniken

Appellee City of Hempstead, Texas

Appellee's Attorneys Arthur L. Pertile, 1ll

Kelly Dempsey

Corey R. Ouslander

Wortham Tower, Suite 600

2727 Allen Parkway

Houston, Texas 77019

Appellee Citizens Against the Landfill in Hempstead

Appellee's Attorneys Teny L. Scarborough

Michael L. Woodward

V. Blayre Perra

400 w 15'' #950

Austin, Texas 78701

Carol A. Chaney

820 13 1' Street

PO Box 966

Hempstead, Texas, 77445

Court Reporter Robyn Wiley

979-921-0921

reporter@court506.com

MarshaL. Burrus

936-372-5182

shaburrus@sbcglobal.net

Maggie Raiford

979-716-7122

maggie raiford@yahoo.com

Kaetheryne Kyriell

936-443-3312

kkyriell@gmail.com

Judgment February 20,2015

Notice Appeal Aprill5, 2015

Assigned 14th Court of Appeals

Liz Pirkle

LIZ PI.IV<:r,.p, DISTRICT LERK OF WALLER COUNTY

J2__

cc; Hon. Albert M. McCaig

David A. Carp, dcaro@hcmlegal.com

James P. Allison, Lallison@allison-bass.com

J. Eric Magee, e.magee@allison~bass.com

Corey R. Ouslander, couslander@olsonllp.com

V. Blayre Pena, bpena@hslawmail.com

Carol A. Chaney, carol.chaney@thechaneyfirm.net

Brent W. Ryan, bryan@msmtx.com

Robyn Wiley, reporter@court506.com

MarshaL. Burrus, shaburrus@sbcglobal.net

Maggie Raiford, maggie raiford@yahoo.com

Kaetheryne Kyriell, kkyriell@gmail.com

Elton R. Mathis, e.mathis@wallercounty.us

Ruhee G. Leonard, r.leonard@wallercounty.us

Flied: 411512015 4:15:34 PM

Liz Plrk:le, District Clerk

Waller County, Texas

By: Janie Derrick, Deputy

CAUSE NO. 13-03-2187.2

CITY OF HEMPSTEAD, TEXAS § IN THE DISTRICT COURT OF

Plaintiff, §

and §

CITIZENS AGAINST THE LANDFILL § WALLER COUNTY, TEXAS

IN HEMPSTEAD §

v. §

WALLER COUNTY, TEXAS, et al., §

Defendants. § 506'" JUDICIAL DISTRICT

NOTICE OF APPEAL

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), desire to appeal and hereby file this notice with the

Court of Civil Appeals for the First or Fourteenth Judicial District of Texas, sitting at

Houston, Texas from the Agreed Final Judgment signed in the above Cause on

February 20,2015, and Appellants desire to appeal from each and every part of said

Agreed Final Judgment.

Pursuant to TRAP 26.1 (d) Appellants desire to join in the related Notice of

Appeal filed on April2, 2015 by Glenn Beckendorff, in his Official Capacity as Waller

County Judge, and are hereby filing this their Notice of Appeal within fourteen (14)

days of Mr. Beckendorff's appeal. Mr. Beckendorff's appeal is assigned to the

Fourteenth Court of Appeals under Court of Appeals #14-15-00322-CV, and styled

Glenn Beckendorff, in his Official Capacity as Waller County Judge, v. City of

Hempstead, Texas and Citizens Against the Landfill in Hempstead.

Dated: April15, 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 Appellant

CERTIFICATE OF SERVICE

I hereby certify that on April15, 2015 a true and correct copy of the foregoing

Notice of Appeal of 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, was delivered viae-service to the following:

James P. Allison Brent W. Ryan, Esq.

J. Eric Magee McElroy, Sullivan & Miller, LLP

Allison, Bass & Magee, LLP P.O. Box 12127

A. 0. Watson House Austin, TX 78711

402 W. 12th Street

Austin, Texas 78701 Attorneys for Pintail Landfill, LLC

Attorneys for Waller County, Texas

and Waller County Commissioners Court

Eric Farrar, Esq.

Olson & Olson, LLP

Wortham Tower, Suite 600

2727 Allen Parkway

Houston, Texas 77019

Attorneys for City of Hempstead

Terry L. Scarborough

Michael L. Woodward

V. Blayre Pena

Hance Scarborough, LLP

400 w 15th #950

Austin, Texas 78701

Carol A. Chaney

Law Office of Carol A. Chaney

820 13th Street

P.O. Box 966

Hempstead, Texas 77445

Attorneys for Citizens Against the Landfill

in Hempstead

/s/ David A. Carp

David A. Carp

Envelope Details Page 1 of2

Print this page

Case# 13-03-21872- CITY OF HEMPSTEAD,

TEXASv.WALLER COUNTY, TEXAS, COUNTY JUDGE

GLENN BECKENDORFF, COMMISSIONER FRANK

POKLUDA, COMMISSIONER STAN KITZMAN,

COMMISSIONER JERON BARNETT, COMMISSIONER

JOHN AMSLER, and PINTAIL LANDFILL, L.L.C. (Flenniken,

Terry)

Case Information

Location Waller County • 506th District Court

Date Filed 04/15/2015 04:15:34 PM

Case Number 13-03-21872

CITY OF HEMPSTEAD, TEXASv.WALLER COUNTY, TEXAS,

COUNTY JUDGE GLENN BECKENDORFF, COMMISSIONER

Case Description FRANK POKLUDA, COMMISSIONER STAN KITZMAN,

COMMISSIONER JERON BARNETT, COMMISSIONER JOHN

AMSLER, and PINTAIL LANDFILL, L.L.C.

Assigned to Judge Flenniken, Terry

Attorney David Carp

Firm Name Herzog & Carp

Filed By David Carp

Filer Type Not Applicable

Fees

Convenience Fee $0.09

Total Court Case Fees $0.00

Total Court Filing Fees $0.00

Total Court Service Fees $0.00

Total Filing & Service Fees $0.00

Total Service Tax Fees $0.00

Total Provider Service Fees $3.00

Total Provider Tax Fees $0.25

Grand Total $3.34

Payment

Account Name Herzog & Carp

Transaction Amount $3.34

Transaction Response Approved

Transaction ID 8065630

Order# 004905173-0

https://efile.txcourts.gov/EnvelopeDetails.aspx?envelopeguid~9e4ed32c-b5e7-4cff-8f3d-a6e524f3e71d 4/16/2015

Envelope Details Page 2 of2

Notice of Appeal

Filing Type EF ileAndServe

Filing Code Notice of Appeal

Filing Description Notice of Appeal

Reference Number Beckendorff Appeal

Messrs. Pokluda and Kitzman are joining in the

Comments Notice of Appeal filed by Glenn Beckendorff on

April 2, 2015.

Status Accepted

Accepted Date 2015-04-16 13:05:39 UTC

Fees

Court Fee $0.00

Service Fee $0.00

Documents

Lead Document Notice of Appeal Pokluda-Kitzman.pdf [Original] [Transmitted]

eService Details

S d Date/Time

Name/Email Firm Service Type Status erve Opened

McElroy,

Brent WRyan Sullivan, Miller,

EServe Sent Yes Not Opened

bryan@msmtx.com Weber&

Olmstead, LLP

Corey Ouslander Olson & Olson,

EServe Sent Yes Not Opened

couslander@olsonolson.com LLP

Kelly Dempsey Olson & Olson, Sent Yes Not Opened

EServe

kdempsey@olsonllp.com LLP

Ann Jacobs 04/16/2015

Herzog & Carp EServe Sent Yes

ajacobs@hcmlegal.com 08:04:36AM

Arthur L Fertile III Allison Bass & 04/15/2015

EServe Sent Yes

apertile@olsonllp.com Associates LLP 04:47:51 PM

V Blayre Pena Allison Bass &

EServe Sent Yes Not Opened

bpena@hslawmail.com Associates LLP

Carol A Chaney Allison Bass & 04/15/2015

EServe Sent Yes

carol.chaney@thechaneyfirm.net Associates LLP 06:31:28 PM

James Allison Olson & Olson,

EServe Sent Yes Not Opened

j.allison@allison-bass.com LLP

Eric Magee Olson & Olson,

EServe Sent Yes Not Opened

e.magee@allison-bass.com LLP

https://efile.txcourts.gov!EnvelopeDetails.aspx?envelopeguid=9e4ed32c-b5e7 -4cff-8!3d-a6e524!3e71 d 4/16/2015

Cause No. 13-03-21872

CITY OF HEMPSTEAD, TEXAS §

Plaintiff, §

and §

CITIZENS AGAINST THE LANDFILL § WALLER COUNTY, TEXAS

IN HEMPSTEAD §

v. §

WALLER COUNTY, TEXAS, ET. AL. §

Defendants. § 506™ JUDICIAL DISTRICT

AGREED FINAL JUDGMENT

Before the Court is the above-styled and numbered cause of action. On December 1,

2014, the case was called for trial. Plaintiff City of Hempstead ("Hempstead") appeared through

its attorney of record and announced ready for trial. Plaintiff-Intervenor Citizens Against the

Landfill in Hempstead ("CALH") appeared through its attorney of record and announced ready

for trial. Defendants, Walter County, Texas including the elected officials of the Waller County

Commissioners Court, in their official capacities (collectively "Waller County"), appeared in

person and by their attorney of record and announced not ready for trial. Defendant, Pintail

Landfill, LLC, ("Pintail") appeared in person and by its attorney of record and announced not

ready for trial. After denying the Motions to Abate and Requests for Continuance, a jury,

consisting of 12 qualified jurors having been previously demanded, was duly empanelled and the

case proceeded to trial .

•

Agreed Final Judgment Page 1

VOl 2 0 0PG 0 I 38