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Click here for the full text of this decision FACTS:Gary Mack McDaniel seeks a writ of mandamus from this court directing the trial court to vacate an order granting Glynda S. Clark’s motion to disqualify McDaniel’s counsel, Bennett Brantley Aufill III, in the underlying suit. McDaniel has since filed a bankruptcy petition. Clark filed a forcible entry and detainer suit against McDaniel in justice court. McDaniel responded by filing a declaratory judgment action in district court seeking a determination of his rights to the property at issue. McDaniel also obtained a temporary injunction from the district court preventing Clark from evicting him during the pendency of his suit. The district court granted Clark’s motion to disqualify McDaniel’s counsel, and this mandamus proceeding ensued. The question presented is whether the automatic stay imposed as a result of McDaniel’s bankruptcy operates to stay this original proceeding which McDaniel instituted. HOLDING:The case is abated subject to reinstatement upon proper motion. If the underlying proceeding is not stayed by the bankruptcy, then a mandamus proceeding relating to that underlying proceeding will not be stayed either. This court has jurisdiction to determine whether a bankruptcy stay applies to a case before it. Bamburg v. Townsend, 35 S.W.3d 85 (Tex. App. – Texarkana 2000, no pet.). Title 11, 362 of the Bankruptcy Code provides for an automatic stay of judicial proceedings “against the debtor.” 11 U.S.C.A. 362(a) (West 2004). The statute provides in pertinent part: “(a) Except as provided in subsection (b) of this section, a petition filed under section 301, 302, or 303 of this title, or an application filed under section 5(a)(3) of the Securities Investor Protection Act of 1970, operates as a stay, applicable to all entities, of � (1) the commencement or continuation, including the issuance or employment of process, of a judicial, administrative, or other action or proceeding against the debtor that was or could have been commenced before the commencement of the case under this title, or to recover a claim against the debtor that arose before the commencement of the case under this title . . . A judicial proceeding is considered to be “against the debtor” if it was initiated against the debtor. The court looks to the posture of the case at its inception to determine whether it was initiated against the debtor. A split of authority exists among federal courts regarding the determination of whether a proceeding has been initiated by or against a debtor. In federal tax litigation, the 3rd, 5th, and 11th Circuits take the view that, if a debtor files a proceeding in tax court, then the proceeding is one initiated by the debtor and the automatic stay of 362 does not apply. See Rhone-Poulenc Surfactants & Specialties, L.P. v. Commr., 249 F.3d 175, 180 (3d Cir. 2001); Roberts v. Commr., 175 F.3d 889, 893-95 (11th Cir. 1999); Freeman v. Commr., 799 F.2d 1091, 1092-93 (5th Cir. 1986) (per curiam). The 9th Circuit takes the more expansive view that a tax court proceeding is a continuation of an administrative proceeding initiated against a taxpayer by the Internal Revenue Service. At least two state courts have adopted this view. The court agrees with this more expansive view because it seems to better comport with the broad language of 362(a)(1) which provides for the stay of “the commencement or continuation, including the issuance or employment of process, of a judicial, administrative, or other action or proceeding against the debtor . . . .” 11 U.S.C.A. 362(a)(1). Here, Clark initiated a forcible entry and detainer action against McDaniel in justice court to evict him from the property he claims to be his residence. This judicial proceeding is plainly covered by the automatic stay, the court states In response to the Clark suit, McDaniel filed a declaratory judgment action in district court to obtain a declaration of the extent of his ownership interest in the subject property. Under 362(a)(1), this suit is a “continuation” of the judicial proceeding initiated against McDaniel by Clark in justice court. Thus, the declaratory judgment action is likewise covered by the automatic stay. Therefore, because the underlying suit is stayed by McDaniel’s bankruptcy proceeding and because the Supreme Court has abated mandamus proceedings under similar circumstances, the court abates this proceeding under the provisions of Rule of Appellate Procedure 8. OPINION:Per curiam. DISSENT:Gray, C.J. “This case is”suspended.’ Tex. R. App. P. 8.2. If anything we do after bankruptcy is void, Continental Casing Corp. v. Samedan Oil Corp., 751 S.W.2d 499, 501 (Tex. 1988), so too is this order void. I would administratively place this case on the bankruptcy calendar, notify the parties of this action, and remind the parties of Local Rule 18. “We are ‘chasing after the wind.’ Ecclesiastes 2:17. I respectfully dissent.”

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