                                   NO. 07-07-0480-CV

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                        PANEL A

                                SEPTEMBER 9, 2008
                          ______________________________

                           IN RE ROB L. NEWBY, RELATOR
                         _______________________________


Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                       ON PETITION FOR WRIT OF MANDAMUS


       Before us is the pro se petition for writ of mandamus filed by relator, Rob L. Newby.

Relator seeks an order compelling a ruling by the Honorable Stuart Messer, judge of the

100th judicial district court,1 on the following motions filed by relator in that court: (1)

“Motion Requesting Issuance of Citation and Service of Process”; (2) “Motion to Recuse”

(former judge of the 100th judicial district court, David McCoy); and (3) “Motion for

Appointment of Counsel.”


       A letter from Judge Messer to relator addresses each of these motions. It states

that relator’s motion to recuse Judge McCoy is moot as Judge McCoy is no longer the

       1
         The matter of which relator complains originates with former judge of the 100th
judicial district court, David McCoy. Judge McCoy was suspended from office and
subsequently resigned. On March 18, 2008, the governor appointed Judge Messer as
successor of Judge McCoy. By order of April 15, 2008, we substituted Judge Messer as
respondent and abated the proceeding for sixty days so that he could consider the
pleadings on which relator seeks a ruling. Tex. R. App. P. 7.2(a) & (b).
judge presiding over relator’s case; relator’s motion for court appointed counsel is denied;

and by separate document the district clerk was ordered to forward specified documents

of record to the attorney general. The letter bears the file mark of the district clerk.


       We first consider whether the letter of Judge Messer constitutes an order on

relator’s pending motions. In general, letters from the court to counsel are not the type of

documents that constitute a judgment, decision, or order. See Goff v. Tuchscherer, 627

S.W.2d 397, 398-99 (Tex. 1982) (issue was whether letter or subsequent order triggered

appellate timetable). But in Goff the court’s letter directed counsel prepare and present

an order reflecting his ruling on a plea of privilege under former venue practice. Here,

Judge Messer’s letter requires no further action memorializing his rulings. Moreover, the

letter contains the name and cause number of the case, the court’s diction is affirmative

rather than anticipatory of rulings on relator’s motions,2 the letter bears a date, it was

signed by the court, and was filed with the district clerk. As such, it substantially complies

with the requisites of a formal order on relator’s motions. See Schaeffer Homes, Inc. v.

Esterak, 792 S.W.2d 567, 569 (Tex.App.–El Paso 1990, no writ) (distinguishing Goff on

letter similar to that at bar). All indications are that Judge Messer intended that the letter

and the separate order to the district clerk constitute his orders on relator’s three motions.3



       2
        According to the letter “[t]he court finds” the recusal motion moot; “I deny” relator’s
request for appointed counsel; “the court is Ordering the clerk” to forward documents to the
attorney general and a copy “of my Order to the clerk is attached.”
       3
          We also note that relator is an inmate incarcerated in the Texas Department of
Corrections Institutional Division. His filings in this Court are handwritten and indicate
difficulty preparing and copying documents. We find no reason to believe that Judge
Messer intended that relator draft and submit a handwritten proposed order for signature.

                                              2
We, therefore, find Goff distinguishable from the matter at bar. We conclude Judge

Messer’s letter constitutes an order expressing his ruling on each of relator’s motions.4


        We now turn to relator’s petition for writ of mandamus. Relator has asked us to

compel Judge Messer to rule on his three motions. Judge Messer has provided relator

with an order expressing his rulings on the motions. We, therefore, find relator’s petition

for writ of mandamus is moot. Without reaching the merits of the petition we dismiss it as

moot.


        It is so ordered.




                                                          Per Curiam




        4
          Our recognition of the instant letter as an order does not signal approval of a
practice of relying on letters in lieu of formal orders. Ordinarily, preliminary letters from a
court to counsel indicating a ruling are no more than direction for preparation and
circulation of an order formally memorializing the ruling. Such letters, as in Goff, are not
orders.

                                              3
