dissenting.
Given the majority’s proclivity to abate matters for corrective measures to be taken by the trial court, it causes me to question their motives and reasoning when they fail to do so.1 See e.g., Villegas v. Morse, No. 10-06-00237-CV, 2006 WL 2641000, 2006 Tex.App. LEXIS 8150 (Tex. App.-Waco Sept. 13, 2006, order) (Gray, C.J., dissenting); Belton v. ConAgra Poultry Co., No. 10-05-00339-CV, 2005 WL 3275602, *1, 2005 Tex.App. LEXIS 10085, *4-5 (Tex.App.-Waco Nov.30, 2005, no pet.) (Gray, C.J., concurring). Even then, given the language of their conclusion, I would expect a delayed imposition of the *754holding to allow the trial court the opportunity to meet the requirements of their opinion before a fair trial for Graves is put in jeopardy. It is especially troubling that the majority would impose so restrictive of a schedule without the opportunity to cure the perceived problems when the right of the defendant to a fair trial is what weighs in the balance.
The majority recognizes that judicial notice is a substitute for evidence. But they contend that judicial notice was improperly taken because of lack of notice and further that the findings necessary to support the order have not been made. The Court of Criminal Appeals has recently held that when required findings have not been made, we must first abate the appeal so that the required findings can be made. State v. Cullen, 195 S.W.Bd 696, 700 (Tex.Crim.App.2006); see also Uñas v. State, 155 S.W.3d 141 (Tex.Crim.App.2004); Norton v. State, 156 S.W.3d 668 (Tex.App.-Waco 2005, order).
Likewise, the Texas Supreme Court has recently held that if there is some procedural defect in an appeal, Rule 44.3 requires that we must give the parties notice and opportunity to cure the defect before the judgment is affirmed or reversed. Tex.R.App. P. 44.3, Hood v. Wal-Mart Stores, Inc., 216 S.W.3d 829 (Tex.2007); Higgins v. Randall County Sheriff's Office, 193 S.W.3d 898, 899-900 (Tex.2006). While these decisions may not expressly apply to a criminal mandamus proceeding, the Rules of Appellate Procedure do, and they each are designed to remind us of basic due process; notice and the opportunity to be heard.
And as for the majority’s determination that the trial court cannot take judicial notice of certain facts because prior notice was not given; though quoted in their opinion, they neglect the remaining method in which due process can be satisfied in that situation.
In the absence of prior notification, the request [to be heard on the propriety of taking judicial notice] may be made after judicial notice has been taken. [Goode,] § 201(e).
Maj. op. at 751. If Graves properly requested the opportunity to be heard, or if the trial court must make more clear its findings of the nature and extent of pretrial publicity and the impact on the right to a fair trial, the way to get that documented would seem to be abatement rather than a mandamus compelling the trial court to set aside her order. See Tex. R.App. P. 44.3; see also State v. Cullen, 195 S.W.3d 696 (Tex.Crim.App.2006). Urias v. State, 155 S.W.3d 141 (Tex.Crim.App. 2004).
Because the analysis is incomplete, and because, if upon full and proper analysis I concluded the trial court had clearly abused its discretion, I would delay implementation of the order sufficiently to allow the trial court to correct perceived shortcomings in the procedure and findings; I respectfully note my dissent to the Court’s conditional grant of the writ of mandamus.2
. Upon the agreement of all the members of this Court, oral argument was originally scheduled for this proceeding. It involves serious constitutional questions balancing free speech and the requisites to obtain a fair trial. Oral argument would significantly aid in the disposition of this proceeding. For example, this case is different than those cases cited by the majority which occurred in large metropolitan areas. Pretrial publicity will impact the jury pool differently. No one will be more aware of that difference than the trial court and the defendant. I believe the majority has failed to recognize these distinctions in the cited authority that oral argument would have allowed us to explore. Nevertheless, without consulting me, a majority of the Court cancelled oral argument.
. I defer to the majority’s decision to issue the opinion without my having the time necessary to conduct the full analysis I would need to reach a final result. This will yield a more timely disposition though the appellate purist, with whom I agree, would argue that disposition in this manner is premature. See In the Interest of S.A.P., 135 S.W.3d 165, 177 (Tex.App.-Waco 2004) (Gray, C.J., dissenting), *755rev’d and remanded, 156 S.W.3d 574 (Tex.2005).