in Re Madeline Moore, Brian Moore, and Ty Clevenger ( 2010 )

IN THE

TENTH COURT OF APPEALS

 

No. 10-09-00376-CV

In re Madeline Moore,

Brian Moore, and Ty Clevenger

Original Proceeding

MEMORANDUM  Opinion

            In this original proceeding for a writ of mandamus, Relators Madeline Moore, Brian Moore (collectively the Moores), and Ty Clevenger assert five issues.  The underlying suit is one affecting the parent-child relationship.  We will deny the petition.

            We summarily deny relief on issues three and five.  Issue four, which seeks in part the recusal of the sitting judge (Respondent Robert M. Stem, Judge of the 82nd District Court of Robertson County) in the underlying case, is moot because Judge Stem has recused himself.

We cannot grant the other relief sought in issue four (the recusal or disqualification of Judge Stem in all cases in which Clevenger is an attorney of record).  No such motion appears to have been filed in the trial court, and a ruling, or a refusal to rule, by Judge Stem on which we could possibly grant mandamus relief is not before us.

Issue two asserts that a visiting judge (Respondent Cara Wood, Judge of the 284th District Court of Montgomery County), erred in issuing a stay of the underlying case.  Because the stay order expired on its own terms on December 31, 2009, issue two is moot.

Issue one asserts that the trial court lacks jurisdiction because Real-parties-in-interest Tracey and Timothy Moore lack standing.  The Moores (the Relators) filed a motion to dismiss the underlying proceeding on the basis that Tracey and Timothy Moore lack standing. A hearing on the motion to dismiss was held before Judge Wood, but no ruling was made.  In connection with Judge Stem’s recusal, he requested the assignment of a visiting judge to hear the underlying case.  The first assigned judge was objected to by Real-party-in-interest Tracey Moore.  Until an assigned judge has had a reasonable opportunity to consider the Relators’ motion to dismiss, it would be premature for us to address issue one.  See In re Birdwell, 224 S.W.3d 864, 865-66 (Tex. App.—Waco 2007, orig. proceeding) (op. on reh’g). Accordingly, it is denied without prejudice.

We deny the petition for writ of mandamus and dismiss Relators’ motion to expedite as moot.

REX D. DAVIS

Justice

Before Chief Justice Gray,

Justice Reyna, and

Justice Davis

Petition denied and Motion to Expedite dismissed as moot

Opinion delivered and filed March 10, 2010

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