Date	Event	Outcome
2014-04-04	Cause Reinstated disposed	Filing dismissed as moot
2014-04-04	Stay Order lifted
2014-04-04	Abatement Order Lifted
2014-04-04	cause reinstated to active docket
2014-03-24	Call received (Relator)
2014-03-24	Status report filed (Relator)
2014-03-17	Call received (Relator)
2014-03-13	Phone call from Clerk's Office (Relator)
2014-02-18	Phone call from Clerk's Office (Relator)
2014-01-17	Miscellaneous motion disposed. See Remarks.	Denied
2014-01-17	Call received (Relator)
2014-01-15	Phone call from Clerk's Office
2014-01-13	Motion to stay mandate filed. (Real Parties in Interest)
2013-12-12	Order of the Court Issued	Matter in Supreme Court of Texas Abated
2013-11-01	Order of the Court Issued	Matter in Supreme Court of Texas Abated
2013-11-01	Opinion issued	Matter in Supreme Court of Texas Abated
2013-10-09	Oral argument
2013-09-16	Oral Argument Submission Form from Attorney received (Relator)
2013-09-10	Oral Argument Submission Form from Attorney received (Real Parties in Interest)
2013-09-05	Oral Argument Submission Form from Attorney received (Real Parties in Interest)
	This case was waiting for oral argument between May 3, 2013 and September 5, 2013.
2013-05-03	Case set for oral argument
	This case was waiting for oral argument between February 15, 2013 and May 3, 2013.
2013-02-15	Mandamus Set to Argue
2013-02-15	Motion for leave to file brief	Filing granted
2013-02-15	Petition for Writ of Mandamus disposed	Case set for oral argument
2013-01-24	Letter Filed (Relator)
2013-01-24	Call received (Relator)
2013-01-22	Motion for leave to file brief (Real Parties in Interest)
2013-01-22	Surreply Filed (Real Parties in Interest)
2013-01-09	Reply brief filed (Relator)
2012-12-21	Motion for Extension of Time disposed. (Relator)	Filing granted
2012-12-20	Call received (Real Parties in Interest)
2012-12-20	Phone call from Clerk's Office (Real Parties in Interest)
2012-12-20	Motion for extension of time to file brief. (Relator)
2012-12-17	Brief filed (Real Parties in Interest)
2012-12-17	Brief filed (Real Parties in Interest)
2012-11-26	Brief filed (Relator)
2012-10-26	Brief on the Merits Requested
	This case was waiting for a decision about briefing or a possible grant between August 22, 2012 and October 26, 2012.
2012-08-22	Reply to Petition for Writ of Mandamus (Relator)
2012-08-22	Supplemental appendix (Relator)
2012-08-21	Case forwarded to Court
2012-08-16	Notice of Appearance (Relator)
2012-08-13	Response to Petition for Writ of Mandamus Filed (Real Parties in Interest)
2012-08-13	Response to Petition for Writ of Mandamus Filed (Real Parties in Interest)
2012-08-03	Petition for Writ of Mandamus filed (Relator)
2012-08-03	Stay Order issued
2012-08-03	Appendix to any instrument (Relator)
2012-08-03	Motion to Stay Disposed	Filing granted
2012-08-03	Motion to Stay Filed (Relator)
2012-08-03	Certification (various) in case received (Relator)
2012-08-03	Supreme Court of Texas Requested Response
2012-08-03	Phone call from Clerk's Office

Parties

Party

Counsel

Role

Department of Family & Protective Services

Mr. Ronald D Hankins

Ms. Luisa P. Marrero

Ms. Susan Marie Wolfe

Mr. Michael D. Becker

Mr. Michael C. Shulman

Mr. Eric Tek Tai

Mr. Gerry Williams

Real Party In Interest

M.R.

Ricardo De Los Santos

Real Party In Interest

Blevins, Melissa

Ms. April L. Martin

Ms. Brandy R. Manning

Mr. Mark Childress

Relator

R.M.R.

Mr. Andrew W. Lucas

Real Party In Interest

Can you mandamus a judge who has already recused himself?

Per Curiam

One of the ways that mandamus practice differs from most appellate practice is that the procedure is personal to the officeholder (judge or official) whose decision is being challenged.

With the use of mandamus to challenge fairly common pretrial orders, there is a mismatch between error and remedy — the “writ” of mandamus is the state compelling behavior by one of its officeholders.1

As an artifact of this system, the Texas rules provide that a former trial judge cannot be mandamused. Conventional appeals involving that judge continue; they are not personal to the judge. But the mandamus action must be abated until a new judge holding that office is first given a chance to revisit the issue. Tex. R. App. P. 7.2 (discussing what happens “if that person ceases to hold office before the … original proceeding is finally disposed”).

The courts of appeals were split three ways on what to do if a judge had merely recused themselves, and not ceased to hold office: Some held that the mandamus must continue because Rule 7.2 was not triggered. Some held that the mandamus must be dismissed outright. And some held that the court of appeals should abate, much as it would if the judge had ceased to hold office.

Rather than parsing the language of the rule, the Supreme Court looks to the appellate courts’ more general discretion not to grant mandamus relief. It holds that an appellate court faced with this situation should either abate or, depending on the circumstances, dismiss the mandamus petition. It is up to the appellate court “to determine which of the approaches affords a better and more efficient manner of resolving the dispute.”

The underlying facts here involve an order transferring children from foster parents to a biological father that had been deported to Mexico, bringing to mind the situation in IN THE INTEREST OF E.N.C., J.A.C., S.A.L., N.A.G. AND C.G.L., No. 11-0713. Apparently to put a firm deadline on resolving the issue, the Court abated the mandamus proceeding and directed the new trial judge to report back no later than December 20, 2013.

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