NUMBER 13-20-00263-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

 

IN RE FRANCISCO ESTEBAN BUNT, DOMIT & KAMEL, LP, AND 

DOMIT & KAMEL GM, LLC

 

On Petition for Writ of Mandamus.

 

MEMORANDUM OPINION

Before Chief Justice Contreras and Justices Longoria and Tijerina

Memorandum Opinion by Chief Justice Contreras1

Relators Francisco Esteban Bunt, Domit & Kamel, LP, and Domit & Kamel GM, 

LLC, filed a petition for writ of mandamus arguing that the Honorable Ysmael D. Fonseca 

abused his discretion by striking relators’ jury demand by order dated May 6, 2020. 

Relators subsequently moved to abate this cause on grounds that Judge Fonseca’s term 

of office expired on December 31, 2020, and he was succeeded in office by the Honorable 

1 See TEX. R. APP. P. 52.8(d) (“When denying relief, the court may hand down an opinion but is not 

required to do so,” but “[w]hen granting relief, the court must hand down an opinion as in any other case”); 

id. R. 47.4 (distinguishing opinions and memorandum opinions).
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Joe Ramirez. This Court granted relators’ motion and abated and remanded this case to 

allow Judge Ramirez the opportunity to reconsider Judge Fonseca’s ruling regarding 

relators’ jury demand. 

The Court has now received and reviewed the supplemental clerk’s and reporter’s 

records regarding the trial court proceedings held on remand. On February 25, 2021, 

Judge Ramirez held a hearing pursuant to our directive. He informed the parties to this 

original proceeding that, due to unavoidable docket constraints, he would be unable to 

hear the case and had thus arranged to transfer the matter to another court. That same 

day, he signed an order transferring the case by agreement to the Honorable Noe 

Gonzalez, Presiding Judge of the 370th District Court of Hidalgo County, Texas. There 

has been no activity in this original proceeding since the supplemental clerk’s and 

reporter’s records were filed on March 11, 2021, and February 26, 2021, respectively.

Although a particular respondent is not critical in an original proceeding, the writ 

must be directed to someone. In re Blevins, 480 S.W.3d 542, 543–44 (Tex. 2013) (orig. 

proceeding) (per curiam); In re Schmitz, 285 S.W.3d 451, 454 (Tex. 2009) (orig. 

proceeding). Generally, a writ will not issue against one judge for what another judge did. 

In re Blevins, 480 S.W.3d at 543; In re Baylor Med. Ctr. at Garland, 280 S.W.3d 227, 228 

(Tex. 2008) (orig. proceeding); see also State v. Olsen, 360 S.W.2d 402, 403 (Tex. 1962)

(orig. proceeding) (per curiam) (“A writ of mandamus will not lie against a successor judge 

in the absence of a refusal by him to grant the relief Relator seeks.”). Texas Rule of 

Appellate Procedure 7.2 addresses this topic, in part, and provides that when a judge 

who is a party to an original proceeding ceases to hold office, the court “must abate the 
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proceeding to allow the successor to reconsider the original party’s decision.” TEX. R. APP.

P. 7.2(b). When the trial judge who signed the order at issue has not ceased to hold office 

but has only recused himself or herself from further participation in the case, appellate 

courts should either deny the petition for mandamus or abate the proceedings pending 

consideration of the challenged order by the new trial judge. See In re Blevins, 480 

S.W.3d at 544. Because mandamus is a discretionary writ, the appellate court involved 

should exercise discretion to determine which of the two approaches affords the better 

and more efficient manner of resolving the dispute. See id.

Given the current posture of this case, we conclude that that this petition for writ of 

mandamus is not properly before us at this time, and further proceedings at this juncture 

should be devoted to the sound discretion of Judge Gonzalez. In this regard, Rule 7.2(b) 

does not require indefinite abatement, but instead requires only that we “abate the 

proceeding to allow the successor [judge] to reconsider the original [judge’s] decision.”

TEX. R. APP. P. 7.2(b); see In re Facebook, Inc., No. 20-0434, 2021 WL 2603687, at *3 

n.2, __ S.W.3d __, at __ (Tex. June 25, 2021) (orig. proceeding). That requirement has 

been met here. Judge Fonseca signed the order subject to review on May 6, 2020, 

relators filed their petition for writ of mandamus on September 8, 2020, relators filed their 

motion to abate on January 19, 2021, and we abated this original proceeding on January 

21, 2021, to allow Judge Ramirez to consider Judge Fonseca’s decision. Further, to our 

knowledge, there has been no activity in the underlying case since it was transferred to 

Judge Gonzalez’s court on February 25, 2021. The intervening time has been sufficient 

to “allow the successor to reconsider the original [judge]’s decision.” See TEX. R. APP. P. 
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7.2(b); In re Facebook, Inc., 2021 WL 2603687, at *3 n.2. And, as noted by the Texas 

Supreme Court, “mandamus is a discretionary writ,” the availability of which depends in 

part on our equitable judgment as to whether mandamus relief is an “efficient manner of 

resolving the dispute.” In re Blevins, 480 S.W.3d at 544.

The Court, having examined and fully considered the pleadings on file, the 

foregoing sequence of events, and the applicable law, is of the opinion that we should 

deny the petition for writ of mandamus. Accordingly, we reinstate this original proceeding. 

We lift the stay previously imposed in this case. See TEX. R. APP. P. 52.10(b) (“Unless 

vacated or modified, an order granting temporary relief is effective until the case is finally 

decided.”). We deny the petition for writ of mandamus without prejudice. 

DORI CONTRERAS

Chief Justice

Delivered and filed on the

8th day of July, 2021.