In re Ovidio Garcia, Jr.--Appeal from 229th Judicial District Court of Starr County

MEMORANDUM OPINION

PER CURIAM

Sitting: Alma L. L pez, Chief Justice

Sandee Bryan Marion, Justice

Rebecca Simmons, Justice

Delivered and Filed: May 7, 2008

PETITION FOR WRIT OF MANDAMUS DENIED WITHOUT PREJUDICE

Relator Ovidio Garcia, Jr. filed a petition for a writ of mandamus seeking to compel the Honorable Alex W. Gabert, presiding judge of the 229th Judicial District Court, Starr County, Texas, to rule on relator's motion for forensic DNA testing. In response, Judge Gabert filed copies of: (1) an order granting the State's motion for Judge Gabert's recusal; and (2) a request to the regional administrative judge asking for the assignment of a judge to hear relator's motion. We conclude that the newly-appointed judge must be given a reasonable opportunity to consider and rule on relator's motion and therefore deny relator's request for mandamus relief at this time. Accordingly, relator's petition for a writ of mandamus is denied without prejudice.

PER CURIAM

DO NOT PUBLISH

1. This proceeding arises out of Cause No. 91-CR-43, styled State of Texas v. Ovidio Garcia, Jr., filed in the 229th Judicial District Court, Starr County, Texas, the Honorable Alex W. Gabert presiding.