in Re Madeline Moore, Brian Moore, and Ty Clevenger

• Court: Court of Appeals of Texas
• Decided: March 10, 2010
• Docket: 10-09-00376-CV
• Status: Published

Opinion

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

In re Madeline Moore, Brian Moore and Ty Clevenger Page 2 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 [OT06]

In re Madeline Moore, Brian Moore and Ty Clevenger Page 3