in Re Joseph Robert Riley

IN THE

TENTH COURT OF APPEALS

 

No. 10-10-00255-CV

In re Joseph Robert Riley

Original Proceeding

corrected ORDER

In this original proceeding, we have conditionally granted mandamus relief to Relator Joseph Robert Riley, who has now filed a “Motion for Issuance of Mandamus.”  Riley’s motion asserts that on March 29, 2011, the Respondent, the Honorable Michael Gassaway, Visiting Judge of the County Court at Law Number Two of McLennan County, initially issued a ruling in accordance with our judgment and opinion; however, on April 21, 2011, Respondent granted a motion to reconsider filed by the real-parties-in-interest and withdrew the order entered on March 29, 2011.  In our opinion and judgment conditionally granting the writ, it was clear that the trial court was to enter an order granting Relator’s Plea to the Jurisdiction/Motion to Transfer this cause to the district court of McLennan County and to withdraw his previous order within twenty-one (21) days of the issuance of our opinion and judgment on March 23, 2011, which the trial court did in its March 29, 2011 order.  See In re Riley, No. 10-10-00255-CV, 2011 Tex. App. LEXIS 2122 (Tex. App.—Waco March 23, 2011) (orig. proceeding).  However, the real-parties-in-interest argued that all that our judgment required was a withdrawal of the trial court’s earlier denial of Relator’s motion.  The trial court’s entry of the judgment of March 29, 2011 was correct.

Riley’s motion for the issuance of the writ of mandamus is granted.[1]  The clerk is directed to issue the writ in accordance with this order and our opinion and judgment dated March 23, 2011, and is ordered to deliver the writ to Respondent forthwith commanding him, not later than 5:00 o’clock p.m. on May 11, 2011, to reinstate the order rendered, signed, and entered on March 29, 2011 and, to the extent necessary to give that order effect, the Respondent is ordered to withdraw its order dated April 21, 2011 because it interferes with the enforcement of this Court’s opinion and judgment issued on March 23, 2011.  The clerk shall attach a copy of this order to the writ of mandamus to be served on Respondent in accordance with this order.

PER CURIAM

Before Chief Justice Gray and

Justice Davis[2]

Motion granted

Order issued and filed on May 6, 2011

Do not publish

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[1] A motion to issue the writ was not necessary.  It did provide a procedural vehicle for Riley to provide this Court with notice of the events that occurred in the trial court.  Notice that the errant order had been withdrawn but then the order withdrawing that order was subsequently withdrawn is the information that we needed and which requires us to issue the writ to compel the trial court to take action in conformity with our opinion and judgment.  Additionally, we note that although the real-parties-in-interest did not file a response in this Court, they did respond to the motion by again asking the Texas Supreme Court to prevent this Court from issuing the writ of mandamus.

[2] The Honorable Felipe Reyna, a former justice on this court, was on the panel and present for oral argument, but having left office on December 31, 2010, he did not participate in the decision conditionally granting the writ or this order to issue the writ.  See Tex. R. App. P. 41.1(c).