Opinion
No. 13-08-00454-CV
Memorandum Opinion delivered and filed November 10, 2008.
On Motion to Abate.
Before Justices RODRIGUEZ, GARZA, and VELA.
MEMORANDUM OPINION
This cause was commenced on July 28, 2008, when Danny Castillo, appearing by and through court-appointed counsel, filed a "Notice of Filing of Rule 20.1 Affidavit by Prospective Relator Danny Castillo and Request for Issuance of Notice." Castillo, who stated that he would be seeking mandamus relief in this Court, filed an affidavit of indigence and requested that this Court issue notice thereof pursuant to Texas Rule of Appellate Procedure 20.1. The Court granted Castillo's motion, which was unopposed. The clerk's record and reporter's record have been prepared and filed in this cause; however, the petition for writ of mandamus itself has not yet been filed to date.
On November 6, 2008, Castillo filed a motion to abate this matter based on the death of the Honorable Carl Lewis, who was the Judge of Nueces County Court at Law No. 5. See generally Tex. R. App. P. 7.2(b). Castillo requests that this Court "enter an order of abatement or such other order as is appropriate under the circumstances."
The Court, having examined and fully considered the documents on file and the motion to abate, is of the opinion that relator's motion to abate should be DENIED. Instead, this matter should be dismissed without prejudice as premature because the petition for writ of mandamus has not yet been filed in this matter. Accordingly, we DISMISS this cause without prejudice. If appropriate, the records prepared in this cause may be utilized in any further appellate proceeding that may ensue. The Court expresses no opinion on the availability of relief by mandamus on this record or the merits of any forthcoming petition for writ of mandamus.
This cause is DISMISSED.