in RE: Ronald J. Hettler and Robin Hettler, Relators ( 2002 )

NO. 07-02-0512-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL E

DECEMBER 17, 2002

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IN RE: RONALD J. HETTLER AND ROBIN HETTLER, RELTORS

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ON PETITION FOR WRIT OF MANDAMUS

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Before REAVIS and JOHNSON, JJ. and BOYD, S.J. ⁽¹⁾

By this original proceeding, relators Ronald J. Hettler and Robin Hettler, proceeding pro se, seek a writ of mandamus to compel the Honorable Bradley S. Underwood, Judge of the 364^th District Court, Lubbock County, to decide a question of his disqualification at the time of trial. For the reasons stated below, the petition will be denied.

An original proceeding filed in this Court must comply with the requirements of Rule 52 of the Texas Rules of Appellate Procedure. Relators' petition does not comply with that Rule because, among other things, it does not contain a certified or sworn copy of the judgment rendered upon the trial of the cause, and a statement of issues presented as required by Rule 52.3. Because relators have not provided a copy of the judgment rendered, among other things, we are unable to determine if their motion to disqualify the trial judge was filed before or after judgment was signed and, accordingly, are unable to determine whether the relief sought by relators constitutes a collateral attack or a direct attack on the judgment, which implicates the rule that the judicial power does not embrace the giving of advisory opinions. Firemen's Ins. Co. of Newark, New Jersey v. Burch, 442 S.W.2d 331, 333 (Tex. 1968).

Accordingly, relators' petition for writ of mandamus is denied and the request for an immediate hearing is also denied.

Per Curiam

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1. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment.

67in; margin-bottom: 0.104167in">ON MOTION TO DISMISS

          Pending before this Court is appellant’s motion to dismiss his appeal. Appellant and his attorney have both signed the motion. Tex. R. App. P. 42.2(a). No decision of this Court having been delivered to date, we grant the motion. Accordingly, the appeal is dismissed. No motion for rehearing will be entertained and our mandate will issue forthwith.

                                                                James T. Campbell

                                                                          Justice

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