¶1dissenting.
¶2This is an application for writ of prohibition seeking to invoke the original jurisdiction of this court. Article V, § 5, Texas Constitution, as amended 1977. The applicant seeks the writ to prohibit respondents from enforcing an “Order to Stay Proceedings” directing the applicant as judge of the trial court to remove a court-appointed counsel in a case pending before the Court of Appeals, and to appoint another attorney. Applicant contends the county court of which he is the duly elected judge has no jurisdiction to take the action ordered by respondents. The order of the respondents is attached to the application for writ of prohibition. It is an unsigned and uncerti-fied copy.
¶3It appears Cleveland Hicks was convicted by a jury of criminal trespass, a Class B misdemeanor, in County Criminal Court at Law No. 3, and his punishment was assessed at 180 days’ confinement in the Harris County jail. Notice of appeal was given and Ben Durant was appointed by applicant as counsel on appeal for Hicks. The appellate record was filed in the Court of Appeals. Hicks’ brief was due November 4, 1983. When no brief was filed by February 3, 1983, the appellate court ordered Durant to file a brief by March 2, 1983. Since no brief was then filed, the respondent Evans on March 21, 1983, supposedly entered an order staying proceedings in the Court of Appeals and directing the applicant trial judge to remove Durant as counsel and to appoint another attorney. On March 30, 1983, the applicant filed his writ of prohibition application in this court.
¶4Respondents, represented by the Attorney General of Texas, have answered, questioning the use of the writ of prohibition since the act complained of has already been performed, and calling attention to the fact that on April 6, 1983 Hicks filed a motion with the Court of Appeals requesting to be represented by Leta A. Moeller, who volunteered to be counsel on appeal.
¶5*41The Court of Appeals (respondents) granted Hicks’ motion and vacated its earlier order of March 21st directing the trial court (applicant) to remove appointed counsel and appoint other counsel.
¶6Further in Hicks v. Duncan, 651 S.W.2d 871 (Tex.App. Houston 1983), the Court of Appeals stated in its opinion involving an application for writ of mandamus:
“... [0]n April 6, 1983, appellant filed a motion with this court to be represented by Leta J. Moeller, as retained counsel, and this court accordingly granted said motion and vacated, as moot, its prior order to the trial court that it remove Ben Durant and appoint new counsel.”
¶7The action of the Court of Appeals granting the writ of mandamus is now pending review on petition for discretionary review in our Cause No. 407-83. The record in said cause is now before this court.
¶8First, it is questionable that prohibition is the appropriate remedy.
¶9In LeBlanc v. Gist, 603 S.W.2d 841, 843 (Tex.Cr.App.1980), this court wrote:
“A writ of prohibition is that process by which a superior court prevents inferi- or courts, tribunals, officers, or persons from usurping or exercising jurisdiction with which they have not been vested. State ex rel. Vance v. Clawson, 465 S.W.2d 164 (Tex.Cr.App.1971), cert. den. 404 U.S. 910, 92 S.Ct. 226, 30 L.Ed.2d 182; 73 C.J.S., Prohibition § 1, p. 9. The writ of prohibition issues to prevent the commission of a future act and not to undo, nullify, or review an act already performed. It will not be granted when the act sought to be prevented is already accomplished but will be when such act is not a full, complete and accomplished act. State ex rel. Vance v. Clawson, supra; State ex rel. Smith v. Blackwell, 500 S.W.2d 97 (Tex.Cr.App.1973); 73 C.J.S. Prohibition § 10c, p. 30.”
¶10Aside from the question of the appropriateness of prohibition as a remedy, the order involved has been vacated and the question presented is moot. There is not presently a justiciable controversy. Normally when the question becomes moot the case is dismissed. See Ex parte Sanchez, 145 Tex. Cr.R. 48, 165 S.W.2d 743 (Tex.Cr.App.1942); Ex parte Marks, 144 Tex.Cr.R. 561, 165 S.W.2d 184 (Tex.Cr.App.1942); Ex parte Spivey, 144 Tex.Cr.R. 578, 165 S.W.2d 111 (Tex.Cr.App.1942); Ex parte Strawn, 146 Tex.Cr.R. 377, 175 S.W.2d 417 (Tex.Cr.App. 1943). As a general rule, neither this court nor the Supreme Court of Texas write advisory opinions. Donahoo v. State, 162 Tex. Cr.R. 388, 285 S.W.2d 952 (Tex.Cr.App. 1955); State v. Parr, 293 S.W.2d 62 (Tex.Cr. App.1956); Ex parte Usener, 391 S.W.2d 735 (Tex.Cr.App.1965); Ex parte Conner, 439 S.W.2d 350 (Tex.Cr.App.1969), and cases there cited. Firemen’s Insurance Company of Newark v. Burch, 442 S.W.2d 331 (Tex.Sup.Ct.1968). See also In re Ivey, 534 S.W.2d 163 (Tex.Civ.App. — Austin 1976); Winely v. State, 556 S.W.2d 637 (Tex.Civ. App. — Austin 1977).
¶11The majority, not totally unaware of the mootness involved, states that although in another case pending before this court it is revealed that the respondents have vacated the very order and directions to the applicant here complained of, that mootness cannot be presumed because this court cannot look to the other record and consider anything therein although it is clearly aware of the same. The reader is asked to compare Garza v. State, 622 S.W.2d 85 (Tex.Cr.App.1980).
¶12Garzawas an unfortunate decision by the then majority of this court. There two defendants, separately indicted, were jointly tried by order of the trial court. On original submission Garza’s conviction was reversed by a panel because the court erred in failing to grant his motion to quash the indictment. Co-defendant Ferguson’s conviction was reversed for the same reason. On rehearing, en banc, the majority affirmed the conviction because Garza made no motion to quash as reflected by the record in his cause and the majority would not look to Ferguson’s record.
¶13Joint trials are now common, and when two or more appellants appeal, the records *42arrive in the appellate court, sometimes together, sometimes not. Frequently there is only one statement of facts from the joint trial and in the record without a statement of facts reference is made to the case with the statement of facts. This court has had no difficulty in using the same statement of facts in disposing of both appeals including challenges to the sufficiency of the evidence.
¶14In Barrientez v. State, 500 S.W.2d 474 (Tex.Cr.App.1973), the majority held that in probation revocation hearings the trial judge could, over objection, take “judicial notice” of testimony in a prior trial conducted before him for the purpose of supporting the allegations of the revocation motion. This, of course, is not judicial notice by any stretch of the imagination, but is a judicially conceived notion transformed into fiat by written opinion. Bradley v. State, 608 S.W.2d 652, 662 (Tex.Cr.App.1980) (Dissenting Opinion, Clinton, J.).
¶15Frequently these appeals from revocation orders arrive in the appellate court without the testimony of which “judicial notice” was taken, and there is no way to assay the contentions raised on appeal. It is obvious in Barrientezand Green v. State, 528 S.W.2d 617 (Tex.Cr.App.1975), and others of the Barrientezilk, the majority have searched through this court’s appellate records of trials resulting in convictions which were independently appealed to this court to see if there was testimony there to support the revocation of probation where the testimony “judicially noticed” was not in the appellate record of the appeal from the order revoking probation. These opinions are silent as to this action, but this is exactly what occurred. See Bradley v. State, 608 S.W.2d 652, 657 (Tex.Cr.App.1980) (Dissenting Opinion, Onion, P.J.).
¶16Earlier in the first Bradleycase, Bradley v. State, 564 S.W.2d 727 (Tex.Cr.App.1978), the testimony of the case previously tried of which “judicial notice” was taken was not in the record on appeal from the revocation and there was no other appellate record to turn to as the previous trial had resulted in a mistrial. The majority of this court abated the appeal for the purpose of having the State put into the record the testimony “judicially noticed.” See also Bradley v. State, 608 S.W.2d 652 (Tex.Cr.App.1980).
¶17It is laughable then to see the present majority say that while another record shows the order in question in the instant case has been vacated, that record can’t be considered, and mootness will not be assumed, or fail to take any action to seek clarification from the parties whether the order has in fact been vacated.
¶18The majority undoubtedly is bent on telling the Courts of Appeals they are misinterpreting Guillory v. State, 557 S.W.2d 118 (Tex.Cr.App.1977), and so obsessed with the need to lecture the majority is going to write regardless of whether the question before the court is moot or whether the opinion will be advisory only, or even whether prohibition properly lies as a remedy.
¶19In State v. Parr, supra, this court wrote:
“The purpose to be accomplished, however laudable and of what interest to the public, cannot furnish a substitute for legal authority or jurisdiction of the Court over the proceeding.”
¶20I can think of one authority which might support the majority’s position:
“ ‘When I use a word,’ Humpty Dumpty said in rather a scornful tone, ‘it means just what I choose it to mean, neither more or less.’ ‘The question is,’ said Alice, ‘whether you can make words mean so many different things.’ ‘The question is,’ said Humpty Dumpty, ‘which is to be master, that’s all.’ ” Carroll, “Through the Looking Glass” (Alice in Wonderland), Chpt. 6.
I dissent.