Opinion
No. 07-09-0113-CV
April 30, 2009.
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
ORDER OF ABATEMENT
Relator, Harvey Bramlett, proceeding pro se and in forma pauperis, seeks a writ of mandamus to compel the Honorable Abe Lopez to rule on motions pending in the 108th District Court of Potter County, Texas. The motions are dated February 19, 2009. On our own motion, we take judicial notice that, effective January 1, 2009, the Honorable Douglas Woodburn now holds the office as Judge Lopez's successor.
A court of appeals has the power to take judicial notice. Office of Pub. Util. Counsel v. Pub. Util.Comm'n of Texas, 878 S.W.2d 598, 600 (Tex. 1994); Tex. R. Evid. 201. The facts noticed, that Judge Lopez retired as Judge of the 108th District Court of Potter County and has been succeeded by Judge Wood burn, 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 notorious, well-known, or easily ascertainable); Tex. R. Evid. 201(b)(1).
A writ of mandamus is an order directed personally to the respondent. In re Roseland Oil Gas, Inc., 68 S.W.3d 784, 786 (Tex.App. 2001, orig. proceeding) ("[m]andamus is personal to the judge"). Accordingly, "[m]andamus will not issue against a new judge for what a former one did." In re Baylor Med. Ctr. at Garland, No. 06-0491, 2008 WL 3991132, at *1(Tex. Aug. 29, 2008) (orig. proceeding) (citing State v. Olsen, 163 Tex. 449, 360 S.W.2d 402, 403 (1962) (orig. proceeding)). Rule 7 of the Texas 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 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." See Tex. R. App. P. 7.2(a) and (b). See also In re Whitfield, 134 S.W.3d 314, 315 (Tex.App. 2003, orig. proceeding).
Accordingly, we order the substitution of Judge Woodburn as Respondent in this original proceeding, see Tex. R. App. P. 7(a), and abate the case for sixty days from the date of this order. During the period of abatement, Relator shall present to Judge Woodburn the requests made the subject of his pending petition for writ of mandamus, obtain a ruling on each, and amend his petition to comply with Rule 53.2 of the Texas Rules of Appellate Procedure.
This Court expresses no opinion on the availability of relief by mandamus on this record or the merits of Relator's petition.
It is so ordered.