in Re Jeffrey Tod Holden ( 2007 )

COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 2-07-029-CV

IN RE JEFFREY TOD HOLDEN RELATOR

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ORIGINAL PROCEEDING

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MEMORANDUM OPINION ^{(footnote: 1)} AND JUDGMENT

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On January 29, 2007, we issued an opinion and order that dismissed as moot Relator Jeffrey Tod Holden’s petition for writ of mandamus, ordered that Relator’s supplemental petition for writ of mandamus be filed under the separate cause number 2-07-029-CV, and ordered Relator to pay the $75 mandamus filing fee.  Relator complied with our order and paid the $75 mandamus filing fee.

While Relator’s supplemental petition for writ of mandamus was pending, the Honorable Nancy Berger took office and is now presiding over the 322nd District Court in Tarrant County, the trial court in which the underlying case is still pending.  Consequently, pursuant to Texas Rule of Appellate Procedure 7.2(b), we abated and remanded this proceeding to allow her to reconsider the December 18, 2006 rulings made by the original Respondent, the Honorable Frank Sullivan.   See Tex. R. App. P. 7.2(b).  

The Honorable Nancy Berger has complied with our order.  She submitted a letter to this court stating that it is her opinion “that the evidence presented at the December 18, 2006 hearing was sufficient for the trial judge, Honorable Frank Sullivan, to have made the rulings that he made” and that she concurred with the rulings. Consequently, we may now consider Relator’s supplemental petition for writ of mandamus.  

Mandamus relief is proper only to correct a clear abuse of discretion when there is no adequate remedy by appeal .  In re Prudential Ins. Co. of Am. , 148 S.W.3d 124, 135-36 (Tex. 2004) (orig. proceeding).  Having reviewed Relator’s supplemental petition for writ of mandamus, we hold that Relator has not demonstrated that mandamus relief is proper.   See id.  Therefore, the court is of the opinion that relief should be denied.  Accordingly, Relator’s supplemental petition for writ of mandamus is denied.  

Real Party in Interest Bobbie McGehee has filed a “Motion to Dismiss Supplemental Petition for Writ of Mandamus Or Alternatively, Motion to Abate Proceedings.”  Because we have denied Relator’s supplemental petition for writ of mandamus, we deny Real Party In Interest Bobbie McGehee’s request to dismiss or abate that supplemental petition.

Relator shall pay all costs of this original proceeding, for which let execution issue.

PER CURIAM

PANEL A:  WALKER, J.; CAYCE, C.J.; and MCCOY, J.

DELIVERED: April 30, 2007

FOOTNOTES

1:

See Tex. R. App. P. 47.4.