in Re Abelardo G. Gonzalez

• Court: Court of Appeals of Texas
• Decided: May 3, 2017
• Docket: 04-17-00261-CR
• Status: Published

Opinion

Fourth Court of Appeals San Antonio, Texas May 3, 2017

No. 04-17-00261-CR

IN RE Abelardo G. GONZALEZ

Original Mandamus Proceeding1

ORDER

Sitting: Sandee Bryan Marion, Chief Justice Rebeca C. Martinez, Justice Irene Rios, Justice

On April 26, 2017, Relator filed a petition for writ of mandamus complaining the trial court had refused to rule the following motions:

(1) Motion for Emergency Injunction/Restraining Order, filed March 7, 2017; (2) Motion for Emergency Hearing, filed December 28, 2016; (3) Second Motion for Emergency Hearing, filed March 12, 2017; (4) Motion for Bench Warrant, filed March 12, 2017; (5) Motion “to Compel to Disclose Ex Parte Information,” filed November 8, 2013; (6) Second “Motion to Lift Confidential Clause,” filed November 8, 2013; (7) Second Motion “to Compel to Disclose Ex Parte information from the Court,” filed November 4, 2016; (8) Motion to Compel the Webb County District Attorney to Disclose Information, filed November 4, 2016; and (9) Motion to Transfer, filed March 3, 2017.

The mandamus record includes a voluntary order of recusal signed by the Honorable Joe Lopez, dated November 17, 2016, and an order assigning the Honorable Philip A. Kazen, Jr., to preside over Relator’s trial court cases, dated February 6, 2017.

When a mandamus complains of actions taken by a trial judge who is recused before the petition for writ of mandamus is filed, an appellate court has the discretion to deny the petition for mandamus or to abate the case and allow the successor judge to consider the issues raised in the mandamus. In re Blevins, 480 S.W.3d 542, 544 (Tex. 2013). Our decision should be based on a determination of “which of the two approaches affords the better and more efficient manner

1 This proceeding arises out of Cause No. 2008CRR-000657-D1, styled State of Texas v. Abelardo Gonzalez, pending in the 49th Judicial District Court, Webb County, Texas, the Honorable Philip A. Kazen, Jr. presiding. of resolving the dispute.” Id. We believe the better and more efficient approach in this original proceeding is to abate this proceeding to allow Judge Kazen to consider the various motions.

Accordingly, we ABATE this proceeding for thirty days from the date of this order to allow the newly appointed judge time to consider the motions listed above. Relator is ORDERED to file in this court either the appropriate motion to dismiss this original proceeding or an amended petition for writ of mandamus and appendix no later than fourteen days following the trial court’s ruling on the motions.

It is so ORDERED on May 3, 2017.

PER CURIAM

ATTESTED TO: _____________________________ Keith E. Hottle, Clerk