Opinion
No. 10-12-00277-CR
08-09-2012
IN RE MARK RAMIREZ
Original Proceeding
ABATEMENT ORDER
Mark Ramirez, an inmate, seeks a writ of mandamus from this Court directing Respondent, the Honorable Erwin Ernst, as Judge of the 12th Judicial District Court of Walker County, to rule on Ramirez's Motion for Judgment Nunc Pro Tunc and to grant Ramirez's requested additional jail time credit. The Honorable Donald Kraemer, not the Honorable Erwin Ernst, is the elected judge of the 12th Judicial District Court.
Judge Ernst presided over Ramirez's trial court proceeding and signed the judgment revoking his community supervision for the offense of robbery on April 23, 2008. It is unclear in the record of this proceeding whether Judge Ernst was assigned as a visiting judge in the underlying proceeding for all matters, including any future actions such as ruling on post judgment motions. The record is also unclear as to which Judge Ramirez's motion nunc pro tunc was presented and which Judge "declined" to rule on the motion.
Accordingly, this proceeding is abated for 42 days from the date of this Order so that Ramirez may clarify the record for this Court whether or not Judge Ernst has a continuing role in the underlying proceeding. If Judge Ernst does not have a continuing role in the underlying proceeding, then while this proceeding is abated, Ramirez is allowed an opportunity to present his motion nunc pro tunc to Judge Kraemer, obtain a ruling, and amend his petition, if necessary, to allege that Judge Kraemer is the party against whom relief is sought. See TEX. R. APP. P. 7.2(b); In re Whitfield, 134 S.W.3d 314 (Tex. App.-Waco 2003, order); see also In re McDaniel, No. 10-04-00166-CV (Tex. App.-Waco Oct. 5, 2005, order) (not designated for publication). If relief is ultimately sought against Judge Kraemer, the amended petition must be served on him.
Further, we note that the copy of the Motion for Judgment Nunc Pro Tunc contained in the appendix to Ramirez's petition is not a file-stamped copy. We request that, during the time the proceeding is abated, Ramirez provide the Court and the parties with a copy of the motion which has been file stamped.
The submission of this proceeding is set aside and is abated. It will be automatically reinstated 42 days from the date of this Order.
PER CURIAM
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Proceeding abated