
NO. 07-07-0480-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

DECEMBER 14, 2007
______________________________

IN RE ROB L. NEWBY, RELATOR
_______________________________


Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
ORDER OF ABATEMENT
          Pending before the Court is a petition for writ of mandamus filed by relator Rob L.
Newby, acting pro se, seeking an order compelling the trial judge to rule on various
motions.
  For the reason that follows, we abate the proceeding.
          Relator contends that, despite his requests the Hon. David M. McCoy, while sitting
as judge of the 100th District Court, failed to rule on motions relator filed in a pending civil
suit.  
          On our own motion, we first consider the proper parties to this proceeding.  We take
judicial notice that Judge McCoy has been suspended for an indefinite period as presiding
judge of the 100th District Court by the State Commission on Judicial Conduct because of
his indictment for alleged felony offenses.
  We take further judicial notice that Senior
District Judge John T. Forbis has been appointed to preside over the 100th District Court.
 
          Rule 7 of the rules of appellate procedure pertains to the substitution of parties in
pending appeals and original proceedings.  Tex. R. App. P. 7.  In part, rule 7.2 provides
that during an original proceeding against a public officer in an official capacity, if the officer
ceases to hold office, the officer’s successor is automatically substituted as a party and
“the court must abate the proceeding to allow the successor to reconsider the original
party's decision.”  Tex. R. App. P. 7.2(a), (b); see In re Whitfield, 134 S.W.3d 314, 315
(Tex.App.–Waco 2003, orig. proceeding).  
           Here, the duration of Judge McCoy’s suspension is indefinite.  Thus, we consider
whether an indefinite suspension from office and ceasing to hold office are sufficiently
synonymous for application of Rule 7.2 to the facts presented.  Mandamus relief can be
granted in a proper case to enforce a trial court’s duty to perform the ministerial acts of
giving consideration to and ruling on motions properly filed and pending before it. In re
Christensen, 39 S.W.3d 250, 251 (Tex.App.–Amarillo 2000) (orig. proceeding); In re
Ramirez, 994 S.W.2d 682, 683 (Tex.App.–San Antonio 1998) (orig. proceeding). Here
relator asks us to order Judge McCoy to rule on pending motions.  But this is not possible
since, under current circumstances, Judge Forbis and not Judge McCoy will preside over
relator’s case in the 100th District Court.  The interests of the parties and judicial economy
in the trial court and this court are not served if we merely await a final determination of
Judge McCoy’s suspension.  Under the unique facts at bar we find the purpose of Rule 7
is best served by substituting Judge Forbis as respondent and abating the case so that
relator may present his complaints to Judge Forbis.  By ordering abatement of this
proceeding, we express no opinion concerning the form or merit of relator’s petition.  
          We, therefore, order the substitution of the Hon. John T. Forbis as respondent in
this original proceeding, see Tex. R. App. P. 7(a), and abate the proceeding for 60 days
from the date of this opinion.  During the abatement, relator shall, by written pleading filed
with the clerk of the trial court, specifically identify (by name and date of filing) each motion
on which he seeks a ruling; request in a contemporaneously filed writing that the trial court
clerk present the pleading to Judge Forbis; obtain a ruling or documentation of the court’s
refusal to rule; and amend his petition and appendix in this court accordingly. 
          It is so ordered.
                                                                Per Curiam
