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In re Whitfield

Court of Appeals of Texas, Tenth District, Waco
Oct 15, 2003
134 S.W.3d 314 (Tex. App. 2003)

Summary

abating because elected trial judge was no longer in office, having chosen not to seek reelection

Summary of this case from In re McCauley

Opinion

No. 10-03-284-CR.

Order issued and filed October 15, 2003.

Original Proceeding.

Attorney for Appellant/Relator: Robert Whitfield, Pro Se, Huntsville, TX.

Attorney for Appellee/Respondent: Robert W. Gage, County District Attorney for Freestone County, Texas, Fairfield, TX.

Before Justice VANCE, and Justice GRAY


ABATEMENT ORDER


Robert Whitfield petitions this Court to issue a writ of mandamus directing Respondent, the Honorable Sam Bournias, to vacate his order denying Whitfield appointment of counsel. Judge Bournias chose not to seek reelection and is no longer the elected Judge of the 87th Judicial District Court of Freestone County. The Honorable Deborah Evans is currently the duly-elected judge.

In a previous case this Court has declined to issue a writ against a successor judge. In re Taylor, 110 S.W.3d 67 (Tex.App. Waco 2003, orig. proceeding). We relied upon the Texas Supreme Court's statement that "[a] writ of mandamus will not lie against a successor judge in the absence of a refusal by him to grant the relief Relator seeks." State v. Olsen, 163 Tex. 449, 360 S.W.2d 402, 403 (1962) (orig. proceeding). In that case we denied the petition for writ of mandamus. We have since concluded that the proper procedure in this instance is to abate the proceeding, giving the Relator the opportunity to present his request to the successor judge. See Jampole v. Touchy, 673 S.W.2d 569, 572 (Tex. 1984); Pelt v. Johnson, No. 10-91-149-CV (Tex.App.-Waco Aug. 15, 1991, order) (not designated for publication); Tex.R.App.P. 7.2(b). There is nothing in the record to indicate that such a request has been made of Judge Evans. If Judge Evans refuses to grant the relief sought, Whitfield may then amend his petition to specifically allege that Judge Evans denied the relief requested and we will duly consider the amended petition.

We abate this case for 45 days from the date of this order to allow Whitfield the opportunity to present his motion to the Judge of the 87th District Court, obtain a ruling, and amend the petition for writ of mandamus.

Case abated


Summaries of

In re Whitfield

Court of Appeals of Texas, Tenth District, Waco
Oct 15, 2003
134 S.W.3d 314 (Tex. App. 2003)

abating because elected trial judge was no longer in office, having chosen not to seek reelection

Summary of this case from In re McCauley

abating because elected trial judge was no longer in office, having chosen not to seek reelection

Summary of this case from In re Shellhorse
Case details for

In re Whitfield

Case Details

Full title:IN RE ROBERT WHITFIELD

Court:Court of Appeals of Texas, Tenth District, Waco

Date published: Oct 15, 2003

Citations

134 S.W.3d 314 (Tex. App. 2003)

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