


 
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
Do
not publish
 


y funds removed from Jones’s
inmate account must be returned to his account.  Accordingly, we conditionally
grant mandamus relief, and the writ will issue only if the trial court fails to
vacate its August 18, 2006 Order and fails to order the return of any removed
funds within fourteen days from the date of this opinion.
            Prior to filing this mandamus
proceeding, Jones filed an appeal with this Court from the same trial court
order.  Because of the disposition of this mandamus proceeding, that appeal,
number 10-06-00343-CR, is dismissed as moot.
 
                                                                                    PER
CURIAM
Before
Chief Justice Gray,
            Justice
Vance, and
            Justice
Reyna
Writ
granted
Appeal
dismissed
Opinion
delivered and filed August 8, 2007
Do
not publish
[OT06]
[CV06]
