Opinion
NO. 09-12-00079-CV
03-08-2012
IN RE JOHN ROBERTS
Original Proceeding
MEMORANDUM OPINION
A petition for writ of mandamus filed by John Roberts asks this Court to order Senior District Judge Joe Bob Golden to rule on motions pending in a lawsuit that commenced after that judge retired from the bench. Originally filed in Cause Number 173,838-C in the 78th District Court of Wichita County, Roberts's suit was transferred to Newton County in April 2011, more than two years after Judge Golden retired as the Presiding Judge of the 1st District Court of Newton County. Roberts's lawsuit has been assigned Cause Number 13225, and is pending in the 1-A District Court of Newton County before the Honorable Jerome P. Owens, Jr., presiding. Judge Jerome P. Owens, Jr. is the Presiding Judge of the 1-A District Court of Newton County, and presumably would preside over any proceedings that might occur in Roberts's lawsuit. Nothing in the mandamus record suggests that Senior Judge Golden has been assigned to hear Cause Number 13225 in a district court in Newton County. Likewise, Relator has not shown that he has ever attempted to present his motions and request an evidentiary hearing in the court where his lawsuit is assigned.
To be entitled to mandamus relief, the relator must show that he made a demand for performance and that the trial court refused to perform a non-discretionary act. See O'Connor v. First Court of Appeals, 837 S.W.2d 94, 97 (Tex. 1992). Abatement of a mandamus proceeding is not necessary when the judge who left office is not the judge who signed the order being challenged. See generally In re Schmitz, 285 S.W.3d 451, 453-54 (Tex. 2009); Tex R. App. P. 7.2. Accordingly, we deny mandamus relief.
PETITION DENIED.
PER CURIAM Before McKeithen, C.J., Gaultney and Horton, JJ.