in Re Kimberly Cole, Relator

• Court: Court of Appeals of Texas
• Decided: January 9, 2023
• Docket: 07-23-00002-CV
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-23-00002-CV

IN RE KIMBERLY COLE, RELATOR

ORIGINAL PROCEEDING

January 9, 2023 ORDER OF ABATEMENT Before QUINN, C.J., and PARKER and YARBROUGH, JJ.

On January 3, 2023, relator, Kimberly Cole, filed a petition for writ of mandamus

challenging a ruling of the respondent trial court judge, the Honorable Drue Farmer, Judge

of the Lubbock County Court of Law Number Two. On our own motion, we take judicial

notice that Judge Farmer’s judicial term expired on December 31, 2022. The Honorable

Tom Brummett was sworn in as her successor on January 3, 2023.1

1 A court of appeals may take judicial notice of a fact even though the fact was not judicially noticed

by the trial court. Off. of Pub. Util. Counsel v. Pub. Util. Comm’n of Tex., 878 S.W.2d 598, 600 (Tex. 1994); TEX. R. EVID. 201. The facts that Judge Farmer’s term as county court at law judge has expired and she has been replaced by Judge Brummett are not subject to reasonable dispute. See City of Houston v. Todd, 41 S.W.3d 289, 301 (Tex. App.—Houston [1st Dist.] 2001 pet. denied) (judicial notice appropriate for facts that are, inter alia, well known or easily ascertainable); TEX. R. EVID. 201(b). A writ of mandamus is an order directed personally to the respondent. In re Solis,

No. 07-08-00370-CV, 2008 Tex. App. LEXIS 7529, at *1 (Tex. App.—Amarillo Oct. 3,

2008, orig. proceeding) (order) (per curiam); see In re Roseland Oil & Gas, Inc., 68

S.W.3d 784, 786 (Tex. App.—Eastland 2001, orig. proceeding) (“mandamus is personal

to the judge”). Consequently, “[m]andamus will not issue against a new judge for what a

former one did.” In re Solis, 2008 Tex. App. LEXIS 7529, at *2 (quoting In re Baylor Med.

Ctr. at Garland, No. 06-0491, 2008 Tex. LEXIS 762, at *1 (Tex. Aug. 29, 2008) (orig.

proceeding)). Texas Rule of Appellate Procedure 7 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).

Accordingly, we note the automatic substitution of Judge Brummett as respondent

in this original proceeding and abate the case for a period of 30 days from the date of this

order. During this period of abatement, Relator shall present to Judge Brummett each

issue made the subject of her pending petition for writ of mandamus; obtain a ruling on

each; and either amend her petition and appendix in this Court accordingly or file a motion

to dismiss her petition.2

It is so ordered.

Per Curiam

2 By this order, the Court expresses no opinion on the availability of relief by mandamus on this record or the merits of Relator’s petition.