IN THE TENTH COURT OF APPEALS No. 10-08-00240-CV IN RE XTO ENERGY, INC.

Original Proceeding

MEMORANDUM OPINION

XTO Energy, Inc. filed an original mandamus proceeding against H. D. Black, then the judge of the 77th District Court. However, because Judge Black subsequently retired and is no longer the sitting judge of the district court, we set aside the submission and abated this proceeding to allow the current sitting judge of the 77th District Court to consider anew the issues decided by Judge Black. TEX. R. APP. P. 7.2 (b); In re Baylor Med. Ctr. at Garland, 2008 Tex. LEXIS 762, 51 Tex. Sup. J. 1334 (Tex. 2008).

XTO Energy, Inc. has now filed a motion to dismiss this proceeding because the order decided by Judge Black has been vacated. Accordingly, this original proceeding is reinstated and dismissed. See TEX. R. APP. P. 42.1(a)(1).

TOM GRAY Chief Justice Before Chief Justice Gray, Justice Reyna, and Justice Davis Proceeding reinstated Petition dismissed Opinion delivered and filed May 27, 2009 [CV06]

In re XTO Energy, Inc. Page 2