I dissent.¹ "A court of appeals must not affirm or reverse a judgment . . . if . . . the trial court's erroneous action or failure or refusal to act prevents the proper presentation of a case to the court of appeals." TEX.R.APP. P. 44.4(a). Here, the case is properly presented to this Court; the habeas court's action is ready to be, can be, and should now be reviewed by this Court.

The rules simply do not give us the authority to abate a proceeding to allow the trial court the opportunity to change his ruling.² There are no do-overs, no mulligans, for the trial court. Once the decision is final and has been appealed, the trial court's opportunity to change, as opposed to clarifying, its ruling will properly come, if ever, only after we have remanded the proceeding for further action by the trial court.

Daniel Ainsworth appeals from the trial court's action in ruling on an application for writ of habeas corpus.

In response to an abatement order that we issued, the trial judge has informed us that there is a conflict in the judgment *Page 316 that he signed. Although it "denied" Ainsworth's application for a writ, it also provided that the prior "judgment should in all things be reversed and barred from further prosecution." The judge states: "it is today the contention of this Court that this Order was improvidently granted due in large part to the fact that at the time of the entry of the Order denying the issuance of the writ, the trial court was unaware that the procedural rules set forth in Art. 11.09 of the Texas Code of Criminal Procedure had not been followed."

Rule of Appellate Procedure 44.4 provides that a judgment must not be affirmed or reversed nor an appeal dismissed if the trial court's erroneous action prevents the proper presentation of the case to the court of appeals and the trial court can correct its action. TEX.R.APP. P. 44.4(a). In such event, the court of appeals must direct the trial court to correct the action, and then proceed as if the erroneous action had not occurred. Id. 44.4(b).

The trial judge says his order was an error, and based on the conflict within the order itself, we agree. Thus, we abate this appeal with directions to conduct any necessary hearings, make appropriate findings and recommendations, enter a corrected order, and have a record of the proceedings prepared within seventy-five (75) days after the date of this Order.

The trial judge shall also enter a certification of the right to appeal from the revised order. Id. 25.2(a)(2).

The trial court clerk is ordered to prepare a supplemental clerk's record containing all orders and findings of fact and conclusions of law which the trial court renders or makes and file the supplemental clerk's record with the Clerk of this Court within ninety (90) days after the date of this Order.

The court reporter is ordered to prepare and file a supplemental reporter's record within ninety (90) days after the date of this Order of any hearing held in response to this Order. *Page 671