### 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 506 Judicial District Court th 

### 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. ACCEPTED 01-15-00523-CV FIRST COURT OF APPEALS

HOUSTON, TEXAS 6/29/2015 5:08:58 PM CHRISTOPHER PRINE

CLERK

### 2

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.

### 3

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

### 4 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 12 Street Austin, TX 78701

th 

### 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 15 #950

th 

### Austin, Texas 78701 tscarborough@hslawmail.com bpena@hslawmail.com and

### 5

Carol A. Chaney Law Office of Carol A. Chaney 820 13 Street

th 

### 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

### NO. 01-15-00523-CV In the Court ofAppeals Forthe First District ofTexas at Houston, Texas
GLENN BECKENDORFF, IN HIS OFFICIAL CAPACITYAS 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 DistrictCourt ofWaller County, Texas Trial CourtCause 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:

11. My name is Floyd Glenn Beckendorff. tam over21 years ofage and am otherwise fully capable of making this affidavit. I have personal knowledge ofthe facts stated in this affidavit, and they are true and correct. 2. Iwas County Judge ofWaller County at all times relevant to this lawsuit except after December 31, 2014 when Iwas no longer in office. 3. It was my understanding that Iwas no longer going to be a party to the lawsuit after December 31, 2014 because Iwas no longer an elected official. Further, it was not necessary that I participate. It was the office of Judge ofthe County that was being sued--notthe 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 ifone 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 ofwhich Iwould be a part of or affected by.

28

. 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."

FURTHERAFFIANT SAYETH NAUGHT.

# ~ 

# JiLM**IL ~**  FIYd Glenn BeckendOfff
SUBSCRIBED AND SWORN TO BEFORE ME on this 29th day of June, 2015 to certify which witness my hand and seal ofoffice

.

ANNJACOBS MYCOMMISSIONEXPIRES**~1 ,2016** 

3 Notary Public in State ofTexas \NO. 01-15-00523-CV In the CourtofAppeals Forthe First District ofTexas 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 DistrictCourt ofWaller County, Texas Trial CourtCause 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:

11. My name is Stan Kitzman. I am over 21 years of age and am otherwisefully capableofmaking this affidavit. Ihave 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 Idid not seek re-election and was no longer in office. 3. It was my understanding that Iwas no longer going to be a party to the lawsuit after December 31, 2014 because Iwas no longer an elected official. Further, it was not necessary that I participate. It was the office of Commissioner- Precinct Fourthat 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 ifone 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."

27. I was not a part of any negotiations directed to an agreed final judgment ofwhich Iwould be a part ofor 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."

FURTHERAFFIANT SAYETH NAUGHT. 

# s -

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

ANNJACOBs M

Y

COMMISSIONEXPIRES**~17,2016**

3 Notary P lie in and forthe State ofTexas