In re Maurice Mitchell--Appeal from 278th District Court of Walker County

IN THE

TENTH COURT OF APPEALS

No. 10-07-00250-CV

In re Maurice Mitchell

Original Proceeding

order

In this original proceeding, we conditionally granted mandamus relief to Relator Maurice Mitchell, who has now filed a request for this court s clerk to certify to the court that Respondent, the Honorable Kenneth H. Keeling, Judge of the 278th District Court of Walker County, has not ruled on Mitchell s motion for default judgment within twenty-one days of our January 23, 2008 opinion and judgment. See In re Mitchell, No. 10-07-00250-CV, slip op. at 3-4, 2008 WL 191477, at *2 (Tex. App. Waco Jan. 23, 2008, orig. proceeding).

Respondent belatedly denied Mitchell s motion for default judgment on April 9, 2008. Accordingly, we deny Mitchell s request, and the writ will not issue.

PER CURIAM

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

( Chief Justice Gray does not join this order and withdraws his joinder in the opinion and judgment conditionally granting mandamus relief. Subsequent to the issuance of the opinion it was learned that although the petition was purportedly served on the attorney purportedly representing the real-party-in-interest in the proceeding below, the request for a response nor any other pleading, notice, order, opinion, or judgment was ever served on or sent to the real-party-in-interest or even to the purported representative of the real-party-in-interest. We are not supposed to grant relief by mandamus without requesting a response. Tex. R. App. Pro. 52.4 ( The court must not grant relief other than temporary relief before a response has been filed or requested by the court. ). Surely this means without requesting a response from both the respondent and the real-party-in-interest. )

Motion denied

Order issued and filed April 30, 2008

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