IN THE

TENTH COURT OF APPEALS

No. 10-10-00432-CR

In re Adam Hoffman

Original Proceeding

Adam Hoffman petitions this Court to issue a writ of mandamus directing Respondent, the Honorable James E. Morgan, Judge of the 220th District Court of Bosque County, to vacate his order requiring Hoffman to surrender $1,000 in attorney’s fees that he alleges Judge Morgan ordered Hoffman to pay as a prerequisite to the granting of Hoffman’s motion to withdraw, and to return the funds to Hoffman.  Judge Morgan did not seek reelection and is no longer the elected Judge of the 220th District Court.  The Honorable Phil Robertson is now the duly elected judge.

            The proper procedure is to abate the proceeding and give Hoffman the opportunity to present his request for relief to the successor judge (Judge Robertson) and allow him to reconsider the original party’s (Judge Morgan’s) decision.  Tex. R. App. P. 7.2(b); In re Whitfield, 134 S.W.3d 314 (Tex. App.—Waco 2003, order) (abating because elected trial judge was no longer in office, having chosen not to seek reelection).  Nothing in the record indicates that such a request has been made of Judge Robertson.  If Judge Robertson refuses to grant the relief sought, Hoffman may then amend his petition to specifically allege that Judge Robertson denied the relief requested, and we will duly consider the amended petition.  See Whitfield, 134 S.W.3d at 314.

            We abate this case for 45 days from the date of this order to allow Hoffman the opportunity to present his motion to the Judge of the 220th District Court, obtain a ruling, and amend the petition for writ of mandamus if necessary.

PER CURIAM

Before Chief Justice Gray,

Justice Davis, and

Justice Scoggins

Abated

Order issued and filed January 12, 2011

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