                            NUMBER 13-13-00689-CV

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG


                      IN RE ESTEBAN MIGUEL GUERRA


                      On Petition for Writ of Mandamus.


                         ORDER OF ABATEMENT
  Before Chief Justice Valdez and Justices Benavides and Longoria
                          Order Per Curiam

      On December 11, 2013, Esteban Miguel Guerra filed a petition for writ of

mandamus contending that the trial court erred in ordering the underlying dispute to

arbitration because: (1) the trial court failed to give notice or hold a hearing prior to

ordering arbitration; (2) because the trial court lacked jurisdiction over the underlying

claims; and (3) the underlying claims were not subject to arbitration.      Relator also

sought an emergency stay of the arbitration proceedings.        The Court ordered the

arbitration proceedings stayed, and requested and received a response to the petition
for writ of mandamus from the real party in interest, the Honorable Rolando Cantu. We

clarify the order of stay previously issued in this case and we abate this original

proceeding as stated herein.

                                       I. BACKGROUND

       The real party in interest brought suit against Guerra in the County Court at Law

No. Six of Hidalgo County, Texas, the Honorable Albert Garcia presiding. According to

the “Plaintiff’s First Amended Original Petition,” the real party provided legal services to

Guerra pursuant to a contract of employment with regard to a will contest that had been

filed in the Probate Court of Hidalgo County. According to this pleading:

       Plaintiff provided extensive legal services over a period of years which
       resulted in a substantial recovery of assets for the Defendant. But for
       Plaintiff’s representation, Defendant would have received none of the
       assets which are the basis of this action. Plaintiff has now learned, based
       on information and belief that Defendant has refused to honor the terms of
       the contract of employment with regard to certain assets which were the
       basis of the lawsuit. Defendant has misrepresented his ownership
       interests applicable to the contract of employment and [has[ refused to
       execute conveyance deeds to certain minerals recovered . . . in the
       Probate Court of Hidalgo County, Texas.

The real party thus brought a cause of action for breach of contract against Guerra for

the alleged failure to fully compensate him according to the attorney fee contract

between the parties. The real party further sought a declaratory judgment that would

determine the rights of the parties under the attorney fee agreement.

       On June 27, 2013, the real party filed a motion for referral to arbitration. That

same day, the trial court granted the motion for referral to arbitration. The real party in

interest effectively concedes that relator did not receive notice or hearing regarding the

motion for referral to arbitration. In the real party’s response, he asserts that relator has

not lost his right to be heard, instead, “he simply will be arguing in front of an [a]rbitrator

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rather than a [j]udge.    The real party concludes that, “[t]herefore, Relator was not

harmed by the lack of notice and a hearing on the Motion for Referral to Arbitration.”

       On August 22, 2013, the trial court held a hearing on a plea to the jurisdiction and

motion to dismiss.

       On November 20, 2013, the trial court entered an order granting a motion for

referral of all dispositive motions to arbitration. The order stated that “this matter and all

dispositive motions with regard to this matter” would be referred to arbitration and be

determined by the appointed arbitrator.

       On December 10, 2013, the trial court granted relator’s motion to recuse and

referred the motion to recuse to the Presiding Judge of the Fifth Administrative Judicial

Region, the Honorable J. Rolando Olvera, for further proceedings. That same day, the

arbitrator issued a letter to the parties.     The letter addresses various matters and

includes the arbitrator’s rulings on, inter alia, a motion for continuance, special

exceptions, and the filing of pleadings. The letter states that the arbitrator “will not rule

on any jurisdictional matters, as such matters have been implicitly decided by the

courts.” The letter concludes:

              Additionally, please note that, with regard to jurisdictional issues, it
       is the Arbitrator’s position that the jurisdictional issues, and the issue
       whether an arbitration should be enforced, are issues that should be
       addressed by the presiding [j]udge. . . . [U]ntil the undersigned is
       instructed by [the judge who appointed me] or any other competent Court
       in the State of Texas to withdraw as Arbitrator, the Arbitrator will proceed
       with the arbitration. . . .

This original proceeding ensued.




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                                     II. ABATEMENT

       Given the foregoing sequence of events, we consider whether this original

proceeding is properly before the Court at this time. Texas Rule of Appellate Procedure

7.2(a) governs the procedure that courts of appeals are to follow when judges or other

public officers who are parties to appellate proceedings no longer occupy the office.

See TEX. R. APP. P. 7.2(a). When a judge who is a party to an original proceeding

ceases to hold office, the judge's successor may be automatically substituted as a party.

See id. “If the case is an original proceeding under Rule 52, the court must abate the

proceeding to allow the successor to reconsider the original party's decision." Id. R.

7.2(b). However, this mandatory abatement only applies if the current judge succeeds a

judge who "ceases to hold office." See id. R. 7.2(a). Rule 7.2 does not apply in cases

involving recusal, and thus abatement is not mandatory in such cases. See, e.g., In re

Gonzales, 391 S.W.3d 251, 252 (Tex. App.—Austin 2012, orig. proceeding); In re

Guerra, 235 S.W.3d 392, 402-03 (Tex. App.—Corpus Christi 2007, orig. proceeding);

see also In re Shellhorse, No. 10-10-00111-CV, 2010 Tex. App. LEXIS 5324, at *2-3 n.1

(Tex. App.—Waco July 7, 2010, orig. proceeding) (mem. op., not designated for

publication).

       Generally, "the respondent is not critical in a mandamus proceeding.”       In re

Schmitz, 285 S.W.3d 451, 454 (Tex. 2008). "Of course, the writ must be directed to

someone, but in the final analysis any judge sitting in the case after mandamus relief is

granted would be compelled to obey it." Id. (citing Loram Maint. of Way, Inc. v. Ianni,

210 S.W.3d 593, 596 (Tex. 2006)). However, the Texas Supreme Court has specifically

held that "[m]andamus will not issue against a new judge for what a former one did." In



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re Baylor Med. Ctr. at Garland, 280 S.W.3d 227, 228 (Tex. 2008) (orig. proceeding); see

also State v. Olsen, 163 Tex. 449, 360 S.W.2d 402, 403 (Tex. 1962) (orig. proceeding)

("A writ of mandamus will not lie against a successor judge in the absence of a refusal

by him to grant the relief Relator seeks.").

       The Texas Supreme Court recently clarified the law regarding how appellate

courts should handle original proceedings in which the respondent has recused himself

or herself. See In re Blevins, No. 12–0636, 57 Tex. Sup. Ct. J. 38, 2013 WL 5878910,

at **1–3 (Tex. Nov. 1, 2013) (orig. proceeding).      In these circumstances, appellate

courts should either deny the petition for mandamus or abate the proceedings pending

consideration of the challenged order or orders by the new trial judge. See id. at *2.

Because mandamus is a discretionary writ, the appellate court involved should exercise

discretion to determine which of the two approaches affords the better and more

efficient manner of resolving the dispute. Id. In the matter before us, neither party has

raised the issue of whether the successor judge should have the opportunity to

reconsider the orders at issue in this original proceeding. But, given the current posture

of the case, we conclude that the better and more efficient approach is to abate the

proceedings in this Court instead of denying the petition. See id. at *3.

       Accordingly, we ABATE this original proceeding for the reasons and purposes

expressed herein. We have previously ordered all arbitration proceedings to be stayed

in this case. This order of stay remains in place; however, the stay does not affect the

ability or duty of the successor judge to consider the rulings at issue in this original

proceeding. We direct the trial judge assigned to the case to take whatever actions and

hold whatever hearings it determines are necessary for it to reconsider the matters at



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issue herein. The Court requests that the trial judge assigned to the case to file a

supplemental record which includes the rulings on reconsideration. The supplemental

record is due within twenty-one days from the date of this order. This proceeding will

then be reinstated on further order of this Court.

       IT IS SO ORDERED.



                                                 PER CURIAM



Delivered and filed the
15th day of January, 2014.




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