in Re Gerald Lee Ricks

• Court: Court of Appeals of Texas
• Decided: June 20, 2013
• Docket: 14-13-00528-CV
• Status: Published

Opinion

Abatement Order filed June 20, 2013

In The

Fourteenth Court of Appeals ____________

NO. 14-13-00528-CV ____________

IN RE GERALD LEE RICKS, Relator

County Court No. 3 Galveston County, Texas Trial Court Cause No. 07-FD-1547

ABATEMENT ORDER

On June 17, 2013, relator filed a petition for writ of mandamus in this Court. See Tex. Gov=t Code Ann. ' 22.221. Relator asked this Court to order The Honorable Christopher Dupuy, Judge of County Court No. 3, Galveston County, Texas, to rule on his motion for enforcement of the judgment entered in trial court cause number 07-FD-1547, styled In the Matter of the Marriage of Eletha Lachon Ricks v. Gerald Lee Ricks.

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. 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. 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 rule on relator’s motion. Therefore, this mandamus proceeding is abated for a period of thirty 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 Justices Boyce, Jamison, and Busby.