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,

,

(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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

2