In re Joseph Robert Riley--Appeal from County Court at Law No 2 of McLennan County (per curiam)

IN THE

TENTH COURT OF APPEALS

No. 10-10-00255-CV

In re Joseph Robert Riley

Original Proceeding

ABATEMENT ORDER

Joseph Robert Riley has petitioned this Court to issue a writ of mandamus directing Respondent, the Honorable Michael B. Gassaway, Judge of the County Court at Law Number Two of McLennan County, to vacate his order denying his motion to transfer this cause to the district court, and to order that the cause be transferred to the district court.  Judge Gassaway did not seek reelection and is no longer the elected Judge of the County Court at Law Number Two of McLennan County.  The Honorable Brad Cates is now the duly elected judge.

            The proper procedure is to abate the proceeding and give Riley the opportunity to present his request for relief to the successor judge (Judge Cates) and allow him to reconsider the original party's (Judge Gassaway's) decision.  Tex. R. App. P. 7.2(b); In re Whitfield, 134 S.W.3d 314 (Tex. App.Waco 2003, order) (abating because elected trial judge was no longer in office, having chosen not to seek reelection).  Nothing in the record indicates that such a request has been made of Judge Cates.  If Judge Cates refuses to grant the relief sought, Riley may then amend his petition to specifically allege that Judge Cates denied the relief requested, and we will duly consider the amended petition.  See Whitfield, 134 S.W.3d at 314.

            We abate this case for 45 days from the date of this order to allow Riley the opportunity to present his motion to the Judge of the County Court at Law Number Two of McLennan County, obtain a ruling, and amend the petition for writ of mandamus if necessary.

PER CURIAM

Before Chief Justice Gray,

Justice Davis, and

Justice Scoggins

Appeal abated

Order issued and filed January 12, 2011

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