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In Re Whitfield , 2003 Tex. App. LEXIS 8885 ( 2003 )


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  • 134 S.W.3d 314 (2003)

    In re Robert WHITFIELD.

    No. 10-03-284-CR.

    Court of Appeals of Texas, Waco.

    October 15, 2003.

    Robert Whitfield, Huntsville, pro se.

    Robert W. Gage, County & District Attorney for Freestone County, Fairfield, for Appellee/Respondent.

    *315 Before Justice VANCE, and Justice GRAY.

    ABATEMENT ORDER

    PER CURIAM.

    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.