Opinion
No. 10-04-00166-CV
Order issued and filed October 5, 2005. DO NOT PUBLISH.
Original Proceeding.
Proceeding abated.
Before Cheif Justice GRAY, Justice VANCE, and, Justice REYNA.
ABATEMENT ORDER
Gary Mack McDaniel seeks a writ of mandamus from this Court directing Respondent, the Honorable Robert Jones, sitting by assignment in the 66th Judicial District Court of Hill County, to vacate an order granting Glynda S. Clark's motion to disqualify McDaniel's counsel Bennett Brantley Aufill, III in the underlying suit. However, Judge Jones was assigned only for the hearing on Clark's motion on the particular date it was set. The elected judge of the 66th Judicial District Court, the Honorable F.B. McGregor, Jr., remains the presiding judge in the underlying suit, and there is nothing in the record to indicate that McDaniel has asked Judge McGregor to reconsider Judge Jones's ruling.
This proceeding was abated for a period of time when McDaniel filed bankruptcy. See In re McDaniel, 149 S.W.3d 860 (Tex.App.-Waco 2004, order). The bankruptcy has since been dismissed and this proceeding reinstated.
In a mandamus proceeding in which the respondent had not sought reelection and a new judge was elected to his seat, this Court abated the proceeding to allow the relator an opportunity to present his motion to the newly-elected judge, obtain a ruling, and amend his petition. In re Whitfield, 134 S.W.3d 314, 315 (Tex.App.-Waco 2003, order) (per curiam). We will follow a similar procedure in this case.
If Judge McGregor refuses to set aside Judge Jones's ruling on the motion to disqualify, then McDaniel may amend his petition to specifically allege that Judge McGregor issued the ruling from which relief is sought, and we will duly consider the amended petition. See id.
Accordingly, we abate this proceeding for 45 days from the date of this Order to allow McDaniel the opportunity to ask Judge McGregor to set aside Judge Jones's ruling on the motion to disqualify, obtain a ruling, and amend the petition for writ of mandamus if necessary. Regardless of the ruling, McDaniel is ordered to provide the Clerk of this Court with a certified copy of Judge McGregor's order within 45 days after the date of this Order.