in Re Michael E. Calpakis ( 2013 )

Abatement Order filed June 11, 2013
In The
Fourteenth Court of Appeals
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NO. 14-13-00422-CV
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IN RE MICHAEL E. CALPAKIS
County Court at Law No. 3
Galveston County, Texas
Trial Court Cause No. 11-FD-2533
ABATEMENT ORDER
On May 31, 2013, relator, Michael E. Calpakis, filed a petition for writ of
mandamus in this court.1 See Tex. Gov’t Code ' 22.221. Relator asks this court to
order the Honorable Christopher Dupuy, Judge of County Court at Law No. 3 of
Galveston County, Texas, to set aside his contempt order entered April 26, 2013, in
an action to enforce the real party-in-interest’s periods of possession of the parties’
minor child.
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Relator attempted to file his petition on May 16, 2013, but the electronic filing was rejected.
This court has taken judicial notice that on May 23, 2013, the State
Commission on Judicial Conduct issued an order of suspension against respondent,
removing him from the bench effective immediately. See Office of Pub. Util.
Counsel v. Pub. Util. Comm’n, 878 S.W.2d 598, 600 (Tex.1994) (stating court of
appeals may take judicial notice even though the fact was not judicially noticed by
the trial court); Tex. R. Evid. 201 (permitting court to take judicial notice, whether
or not requested, at any stage of proceedings). A writ of mandamus may not be
directed to a former judge. See In re Schmitz, 285 S.W.3d 451, 454 (Tex. 2009)
(stating “the writ must be directed to someone” and any judge sitting in the case
after mandamus relief is granted would be compelled to obey the writ); In re
Baylor Med. Ctr., 280 S.W.3d 227, 228 (Tex. 2008) (stating mandamus will not
issue against a new judge for what a former one did).
Texas Rule of Appellate Procedure 7.2 governs the procedure that courts of
appeals are to follow when judges or other public officers who are parties to
appellate proceedings no longer occupy the office. When a judge who is a party to
an original proceeding ceases to hold office, the judge’s successor may be
automatically substituted as a party. See Tex. R. App. P. 7.2(a). “If the case is an
original proceeding under Rule 52, the court must abate the proceeding to allow
the successor to reconsider the original party’s decision.” Tex. R. App. P. 7.2(b).
Rule 7.2 applies when a judge has been indefinitely suspended. See In re Newby,
280 S.W.3d 298, 300 (Tex. App.—Amarillo 2007, orig. proceeding). In a case
involving a judge’s suspension, the appropriate procedure is to abate the
proceeding so that the judge who is assigned to preside over the underlying suit
may reconsider the ruling. Id.at 300-01.see also In re Sekumade, No. 01-10-00817-
CV, 2011 WL 5600724 (Tex. App.—Houston [1st Dist.] Oct. 6, 2011, orig.
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proceeding) (mem. op.) (applying Rule 7.2 to proceeding in which visiting judge
was assigned to sit in place of recused judge).
Texas Rule of Appellate Procedure 7.2(b) requires abatement of this
proceeding to permit a new judge or visiting judge assigned to the underlying case
to reconsider Judge Dupuy’s order. Therefore, this mandamus proceeding is abated
for a period of fifteen days from the date of this order, at which time the parties
shall advise the court of the action taken on the motion for enforcement at issue in
this proceeding. The court will then consider a motion to reinstate or dismiss this
proceeding, as appropriate.
PER CURIAM
Panel consists of Chief Justice Hedges and Justices Frost and Donovan.
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