Opinion
04-19-00714-CV 04-19-00715-CV04-19-00716-CV
07-06-2021
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 HisOfficial Capacity as County Commissioner; Joe Montalvo, In His Official Capacity as CountyCommissioner; 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.
Sitting: Patricia O. Alvarez, Justice, Luz Elena D. Chapa, Justice Irene Rios, Justice.
ORDER
Patricia O. Alvarez, 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.