in Re Rob L. Newby, Relator

NO. 07-07-0480-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

DECEMBER 14, 2007

______________________________

IN RE ROB L. NEWBY, RELATOR

_______________________________

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

ORDER OF ABATEMENT  

          Pending before the Court is a petition for writ of mandamus filed by relator Rob L. Newby, acting pro se, seeking an order compelling the trial judge to rule on various motions. For the reason that follows, we abate the proceeding.

          Relator contends that, despite his requests the Hon. David M. McCoy, while sitting as judge of the 100th District Court, failed to rule on motions relator filed in a pending civil suit.

          On our own motion, we first consider the proper parties to this proceeding. We take judicial notice that Judge McCoy has been suspended for an indefinite period as presiding judge of the 100th District Court by the State Commission on Judicial Conduct because of his indictment for alleged felony offenses. We take further judicial notice that Senior District Judge John T. Forbis has been appointed to preside over the 100th District Court.

          Rule 7 of the rules of appellate procedure pertains to the substitution of parties in pending appeals and original proceedings. Tex. R. App. P. 7. In part, rule 7.2 provides that during an original proceeding against a public officer in an official capacity, if the officer ceases to hold office, the officer’s successor is automatically substituted as a party and “the court must abate the proceeding to allow the successor to reconsider the original party's decision.” Tex. R. App. P. 7.2(a), (b); see In re Whitfield, 134 S.W.3d 314, 315 (Tex.App.–Waco 2003, orig. proceeding).

           Here, the duration of Judge McCoy’s suspension is indefinite. Thus, we consider whether an indefinite suspension from office and ceasing to hold office are sufficiently synonymous for application of Rule 7.2 to the facts presented. Mandamus relief can be granted in a proper case to enforce a trial court’s duty to perform the ministerial acts of giving consideration to and ruling on motions properly filed and pending before it. In re Christensen, 39 S.W.3d 250, 251 (Tex.App.–Amarillo 2000) (orig. proceeding); In re Ramirez, 994 S.W.2d 682, 683 (Tex.App.–San Antonio 1998) (orig. proceeding). Here relator asks us to order Judge McCoy to rule on pending motions. But this is not possible since, under current circumstances, Judge Forbis and not Judge McCoy will preside over relator’s case in the 100th District Court. The interests of the parties and judicial economy in the trial court and this court are not served if we merely await a final determination of Judge McCoy’s suspension. Under the unique facts at bar we find the purpose of Rule 7 is best served by substituting Judge Forbis as respondent and abating the case so that relator may present his complaints to Judge Forbis. By ordering abatement of this proceeding, we express no opinion concerning the form or merit of relator’s petition.

          We, therefore, order the substitution of the Hon. John T. Forbis as respondent in this original proceeding, see Tex. R. App. P. 7(a), and abate the proceeding for 60 days from the date of this opinion. During the abatement, relator shall, by written pleading filed with the clerk of the trial court, specifically identify (by name and date of filing) each motion on which he seeks a ruling; request in a contemporaneously filed writing that the trial court clerk present the pleading to Judge Forbis; obtain a ruling or documentation of the court’s refusal to rule; and amend his petition and appendix in this court accordingly.

          It is so ordered.

                                                                Per Curiam