Opinion
NUMBER 13-16-00093-CV
02-12-2016
IN RE TEXAS RACING COMMISSION
On Petition for Writ of Mandamus.
ORDER
Before Justices Garza, Perkes, and Longoria
OrderPer Curiam
Through this original proceeding, relator Texas Racing Commission ("Commission"), seeks to vacate a February 8, 2016 temporary restraining order preventing the Commission from voting on the repeal of the Historical Racing Rules. By previous order, this Court carried the Commission's request for emergency relief and requested that the real party in interest, the Texas Greyhound Association, or any others whose interest would be directly affected by the relief sought, file a response to this petition for writ of mandamus on or before the expiration of the business day on February 16, 2016. However, the trial court subsequently informed this Court that the underlying cause has been transferred and reassigned by the local administrative judge to the docket of the 103rd District Court of Cameron County.
Given the foregoing sequence of events, we consider whether this original proceeding is properly before the Court at this time. The Texas Supreme Court has observed that mandamus "will not issue against a new judge for what a former one did." In re Baylor Med. Ctr. at Garland, 280 S.W.3d 227, 228 (Tex. 2008) (orig. proceeding) (explaining that abatement is required "to allow the successor [judge] to reconsider the order"); see also In re Schmitz, 285 S.W.3d 451, 453 (Tex. 2009) (orig. proceeding) (observing that, when judge whose ruling is at center of mandamus proceeding is succeeded by another, "[n]ormally, this would require abatement for reconsideration"); see also State v. Olsen, 360 S.W.2d 402, 403 (Tex. 1962) (orig. proceeding) ("A writ of mandamus will not lie against a successor judge in the absence of a refusal by him to grant the relief Relator seeks.").
Texas Rule of Appellate Procedure 7.2(a) 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. See TEX. R. APP. P. 7.2(a). 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 id. "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." Id. R. 7.2(b). However, this mandatory abatement only applies if the current judge succeeds a judge who "ceases to hold office." Id. R. 7.2(a). When the trial judge who signed the order being attacked has not ceased to hold office, but has only recused from further participation in the case, appellate courts should "either deny the petition for mandamus," or "abate the proceedings pending consideration of the challenged order by the new trial judge." In re Blevins, No. 12-0636, 2013 WL 5878910, at *2 (Tex. Nov. 1, 2013) (orig. proceeding). "Because mandamus is a discretionary writ, the appellate court involved should exercise discretion to determine which of the two approaches affords the better and more efficient manner of resolving the dispute." Id.; see also In re Milton, 420 S.W.3d 245, 248 (Tex. App.—Houston [1st Dist.] 2013, orig. proceeding) ("Because we have directed the trial court to transfer the underlying proceeding back to Fort Bend County, we abate the proceedings in this court pending the Fort Bend County court's review of the temporary orders."); In re Walker, No. 02-13-00341-CV, 2013 WL 6799265, at *1 (Tex. App.—Fort Worth Nov. 8, 2013, orig. proceeding) (denying mandamus relief under Blevins).
In the matter before us, neither party has raised the issue of whether the new judge should have the opportunity to reconsider the temporary restraining order. But, given the current posture of the case, we conclude that the better and more efficient approach is to abate the proceedings in this Court instead of denying the petition. Accordingly, we do so. We direct the trial judge assigned to the case to take whatever actions and hold whatever hearings it determines are necessary for it to reconsider the temporary restraining order and those matters underlying it. The trial court is directed to proceed in accordance with this opinion and, subject to any requests for extension of time by that court, cause its order on reconsideration of the temporary restraining order to be filed with the clerk of this Court no later than fourteen days from the date of this order.
IT IS SO ORDERED.
PER CURIAM Delivered and filed the 12th day of February, 2016.