in Re Silver Hays, Relator

• Court: Court of Appeals of Texas
• Decided: February 8, 2021
• Docket: 07-21-00019-CV
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-21-00019-CV

IN RE SILVER HAYS, RELATOR

ORIGINAL PROCEEDING FOR WRIT OF MANDAMUS

February 8, 2021 ORDER Before QUINN, C.J., and PARKER and DOSS, JJ.

Two matters pend before the court. One is a petition for writ of mandamus. The

other is a motion for leave to file a supplemental petition for writ of mandamus. The former

involves whether the Honorable Delwin McGee, County Court at Law for Moore County,

Texas (trial court) abused its discretion in disqualifying counsel for Silver Hays, said

counsel being Briar L. Wilcox. Hays contended it did, and Wilcox petitioned for

mandamus relief on her behalf to confirm that belief. The motion to supplement the

petition was also filed by Silver Hays, though by different counsel, Richard Naylor.

Through it, Hays attempted to interject discovery issues utterly distinct from the disqualification of Wilcox into the original proceeding. Furthermore, whether Hays

through Naylor alone or through Naylor and Wilcox intends to pursue the latter is unclear.

Given the distinction between topics and the risk of delaying disposition of the initial

petition for writ of mandamus if the motion for leave to supplement is granted, we deny

the motion for leave to supplement. That leaves the original petition for writ.

Since the original petition was filed, the trial judge who signed the disqualification

order recused himself. The Honorable John Board then was assigned to preside over the

cause. In circumstances such as this, appellate courts should either deny the petition for

mandamus or abate the proceeding pending reconsideration of the challenged order by

the new trial judge. In re Blevins, 480 S.W.3d 542, 544 (Tex. 2013) (orig. proceeding)

(per curiam). They also should exercise discretion to determine which of the two

approaches affords the better and more efficient manner of resolving the dispute. Id. We

exercise that discretion to abate the petition for writ of mandamus.

We direct the trial judge assigned to the case to take whatever actions and hold

whatever hearings it deems necessary to reconsider de novo the October 5, 2020 order

of disqualification and those matters underlying it. The trial court is not limited to

considering only the evidence previously admitted and on which the October 5th order

was based. The trial court also is directed to proceed in accordance with this opinion

and, subject to any requests for extension of time filed by that court, cause its order on

reconsideration to be filed with the Clerk of this Court no later than 5:00 p.m. on March

10, 2021.

Per Curiam