In re Cox

Full title: IN RE IVY COX

Court: STATE OF TEXAS IN THE TENTH COURT OF APPEALS

Date published: Dec 13, 2017

No. 10-17-00402-CV (Tex. App. Dec. 13, 2017)

Opinion

No. 10-17-00402-CV

12-13-2017

IN RE IVY COX

PER CURIAM

Original Proceeding

ORDER

Following a hearing in the underlying suit affecting the parent-child relationship, the Honorable Jack Jones, Judge of the 146th District Court of Bell County, sitting for the Honorable Fancy H. Jezek, Judge of the 426th District Court of Bell County, made a "temporary order in the case that [Real Party in Interest] Mr. [Christopher] Cox will have the temporary possession of both children just until such time as there is another hearing that's going to be set." The underlying suit was subsequently transferred to Ellis County, and Relator Ivy Cox states that the suit was assigned to the 378th District Court of Ellis County.

Relator now petitions this Court to issue a writ of mandamus directing the Honorable Joe F. Grubbs, the Judge sitting in the 378th District Court of Ellis County, to withdraw or stay Judge Jones's order. However, a writ of mandamus will not lie against a judge in the absence of a refusal by that judge to grant the relief Relator seeks. See State v. Olsen, 360 S.W.2d 402, 403 (Tex. 1962). Based on the information that has been presented to the Court by the parties, it is our understanding that a motion to withdraw or stay Judge Jones's order has not been presented to or decided by Judge Grubbs or any other district court judge in Ellis County. We also take judicial notice that Judge Grubbs has retired and his successor has not been appointed.

We therefore grant Relator ten days from the date of this Order to present her request for relief to an appropriate judge and to then amend her petition to specifically allege that the judge denied the relief requested. If Relator's petition is not amended in this Court within ten days, this cause will be dismissed. See id.

In the meantime, our decision will be held in abeyance, but in an effort to expedite the disposition of this matter, we request a response to Relator's petition for writ of mandamus. See TEX. P. APP. P. 52.8(b). Any response must be filed with the Clerk of this Court within ten days of the date of this Order.

PER CURIAM Before Chief Justice Gray, Justice Davis, and Justice Scoggins
Order issued and filed December 13, 2017
Do not publish