                                     In The

                              Court of Appeals
                   Ninth District of Texas at Beaumont
                            ____________________

                             NO. 09-16-00296-CR
                             NO. 09-16-00297-CR
                            ____________________

                     THE STATE OF TEXAS, Appellant

                                       V.

                 TIMOTHY WAYNE SMITH, Appellee
__________________________________________________________________

                On Appeal from the 252nd District Court
                        Jefferson County, Texas
                  Trial Cause No. 16-24980, 16-24981
__________________________________________________________________

                                    ORDER

      On October 24, 2016, appellee Timothy Wayne Smith filed a motion to

supplement the record with (1) the orders under which District Judge John Stevens

was assigned the Chad Kolander cases, Trial Cause Nos. 16-24978 and 16-24979,

and then recused himself; and (2) the August 19, 2016, letter from District

Attorney Bob Wortham to the special prosecutor, in which Wortham disavows




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being a victim or complaining witness.1 Smith noted that on October 11, 2016, this

Court granted Kolander’s motion and ordered a supplemental clerk’s record. On

October 25, 2016, the District Clerk’s office sent a letter which certified to this

Court that despite a diligent effort to comply with the request to supplement the

Kolander record, the record does not contain the requested documents.

      Smith contends that the orders under which District Judge John Stevens was

assigned the Chad Kolander cases and subsequently recused himself “relate

directly to the propriety of the order Judge Stevens signed appointing Pro Tem

[Prosecutor] Schaffer in the Tim Smith cases[.]” Smith also asserts that the

correspondence from Wortham to Schaffer directly relates to Smith’s contention

on appeal that “the attorney pro tem acted without authority, that this Court lacks

jurisdiction, and that a remand would be futile.”

      It is, therefore, ORDERED that the Smith appeals are abated and the causes

are remanded to the trial court for an evidentiary hearing to settle the issue of

whether (1) the orders under which District Judge John Stevens was assigned the

Chad Kolander cases, Trial Cause Nos. 16-24978 and 16-24979, and then recused

himself; and (2) the August 19, 2016, letter from District Attorney Bob Wortham

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       Smith also requests a copy of Chad Kolander’s “original and supplemental
application for writ of habeas corpus and alternative motion to quash/dismiss the
indictments[.]” The Court will address that request in a separate order.
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to the special prosecutor, in which Wortham disavows being a victim or

complaining witness, should be included in the record in Smith’s cases, and to file

with the Court of Appeals by December 19, 2016, a reporter’s record of the

hearing, as well as a supplemental clerk’s record containing a copy of the trial

court’s order and any documents the trial judge determines should be added to the

records. All appellate timetables are suspended while the cases are before the trial

court.

         ORDER ENTERED November 15, 2016.

                                                   PER CURIAM

Before McKeithen, C.J., Kreger and Horton, JJ.




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