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

Court of Appeals of Texas

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

DecidedJune 1, 2021

Docket04-19-00715-CV

StatusPublished

This text of 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 (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) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

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, (Tex. Ct. App. 2021).

Pincite

Opinion

Fourth Court of Appeals San Antonio, Texas June 1, 2021

Nos. 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 Nos. 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 20, 2021, Appellant’s putative appellate counsel filed notices of appearance and opposed motions for thirty-day extensions of time to file motions for rehearing and motions for en banc reconsideration. The next day, citing changed circumstances, then-appellate counsel moved to withdraw the notices and motions. 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. Citing Rule 7.2, the appellees asked this court to “amend the caption of the proceeding to reflect the substitution of parties.” TEX. R. APP. P. 7.2. Rule 7.2 states in pertinent part as follows: 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. Id. 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. All pending motions are held in abeyance. This court requests 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.” If appearing counsel choose to file a response, the response is due on June 28, 2021.

_________________________________ Patricia O. Alvarez, Justice

IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 1st day of June, 2021.

___________________________________ MICHAEL A. CRUZ, Clerk of Court

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Fourth Court of Appeals San Antonio, Texas June 1, 2021

Nos. 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 Nos. 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 20, 2021, Appellant’s putative appellate counsel filed notices of appearance and opposed motions for thirty-day extensions of time to file motions for rehearing and motions for en banc reconsideration. The next day, citing changed circumstances, then-appellate counsel moved to withdraw the notices and motions. 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. Citing Rule 7.2, the appellees asked this court to “amend the caption of the proceeding to reflect the substitution of parties.” TEX. R. APP. P. 7.2. Rule 7.2 states in pertinent part as follows: 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. Id. 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. All pending motions are held in abeyance. This court requests 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.” If appearing counsel choose to file a response, the response is due on June 28, 2021.

_________________________________ Patricia O. Alvarez, Justice

IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 1st day of June, 2021.

___________________________________ MICHAEL A. CRUZ, Clerk of Court

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Bluebook (online)

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, Counsel Stack Legal Research, https://law.counselstack.com/opinion/the-state-of-texas-ex-rel-todd-a-durden-in-his-official-capacity-as-texapp-2021.