                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT



                                No. 99-10249


JEFFREY HENRY CALDWELL,

                                               Petitioner-Appellant,

                                   versus

GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT
OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,

                                               Respondent-Appellee.



            Appeal from the United States District Court
                 for the Northern District of Texas
                           (3:95-CV-0625)

                              February 18, 2000

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

     We grant the Certificate of Probable Cause, but affirm for

essentially the reasons stated by the magistrate judge and adopted

by the district court.

     The court below refused to grant Caldwell’s request for leave

to amend his petition to assert a claim under Ford v. Wainwright,

477 U.S. 399, 106 S.Ct. 2595 (1986).        Refusing leave to amend was

not error for the reason that the claim was premature.           Texas has

recently provided a procedure for testing the competency of a

person to   be    executed.      That   procedure   remains   available   to


     *
       Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
petitioner under Article 46.04, Texas Code of Criminal Procedure

(effective September 1, 1999).

     AFFIRMED.




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