May 23, 1962.
D. D. Sullivan, Dist. Atty., Andrews, John H. Banks, County Atty., Winkler County, Kermit, for relator.
Warren Burnett, Odessa, Luther E. Jones, Jr., Corpus Christi, for respondents.
Permission to file this original mandamus proceeding in this court was granted on March 14, 1962. Oral Argument was heard and the case submitted for decision on April 25, 1962. The purpose of the proceeding is to require Honorable G. C. Olsen, Judge of the District Court in and for the 109th Judicial District to set aside and vacate a judgment rendered and entered by him in a preliminary proceeding in cause No. 1971, The State of Texas v. John Mack Herring, then pending on the Criminal Docket of said court for Winkler County, and to proceed to trial in said cause.
It has come to the attention of this court that Honorable G. C. Olsen has died since the case was submitted. No doubt a successor will be appointed and will qualify in due time. The proceeding against Judge Olsen is moot. 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. If the successor judge refuses to grant the relief sought, Relator may then amend its application for writ of mandamus and the matter will be decided on the merits. There will be no need for reargument.
Relators will be granted fifteen days from the qualification of a successor to Judge Olsen in which to file an amended application for writ of mandamus. If the successor judge should refuse to grant relief and an amendment is not filed within the time stipulated, this cause will be dismissed. In the meantime, decision in the case will be held in abeyance. Saenz v. Sanders, 151 Tex. 10, 245 S.W.2d 483.