in Re: Burks, Gerald A. ( 2002 )

Opinion issued November 27, 2002

In The

Court of Appeals

For The

First District of Texas

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NO. 01-02-01053-CV

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IN RE GERALD A. BURKS, GALVESTON COUNTY TREASURER, Relator

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Original Proceeding on Petition for Writ of Mandamus

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O P I N I O N

Relator, Gerald A. Burks, Galveston County Treasurer, filed a petition for writ of mandamus complaining of Judge Dunn's ⁽¹⁾ September 18, 2002, order overruling his objection to her presiding as an assigned retired judge. On October 17, 2002, this Court ordered a response and stayed the trial. On October 28, 2002, this Court received from both the trial court clerk and the Galveston County District Clerk copies of an order signed by Judge Dunn on that date non-suiting all claims against relator in the underlying proceeding.

On October 31, 2002, the Court ordered that unless the clerk of this Court received, within 10 days of the date of that order, a brief and/or supplemental record demonstrating why this original proceeding is not moot, this original proceeding would be dismissed for want of jurisdiction. See Tex. R. App. P. 42.3. No brief or supplemental record has been received.

The existence of an actual controversy is essential to our exercise of jurisdiction. See Hallmark Personnel of Texas, Inc. v. Franks, 562 S.W.2d 933, 935 (Tex. App.--Houston [1st Dist.] 1978, no writ). Because there is no longer a controversy between the parties, this original proceeding is moot and we no longer have jurisdiction.

Accordingly, we vacate our stay order of October 17, 2002, and dismiss this original proceeding. See Tex. R. App. P. 42.3(a), (c).

It is so ORDERED.

PER CURIAM

Panel consists of Justices Nuchia, Jennings, and Radack.

Do not publish. Tex. R. App. P. 47.

1. The Honorable D. Camille Huston-Dunn, retired, assigned judge of the 10th District Court of Galveston County. The underlying proceeding is itself a petition for writ of mandamus, trial court no. 02CV0388, styled

Galveston County and Galveston County Commissioner's Court v. Gerald Burks, Galveston County Treasurer.