                                   IN THE
                           TENTH COURT OF APPEALS



                                  No. 10-08-00435-CV

                             IN RE JOHN STEINBECK


                                  Original Proceeding


                           MEMORANDUM OPINION

      This mandamus proceeding is brought by a distraught father acting as his own

attorney trying to make his way through the legal statutes and rules in an effort to do

what he thinks is in the best interest of his son. He asks us to compel the trial court to

do the following:

   1. Allow him to place his son into child therapy;

   2. Resume the October 30, 2008 hearing to modify the “temporary order;”

   3. Compel the mother of the child to comply with the “standing order” that thou
      shall not speak negatively to the child about the other parent; and

   4. Set a jury trial date for his case that has been on file for 8 years.

      The petition raises some questions about why this proceeding has languished for

so long in the system. As the Relator notes, this proceeding has been pending far longer

than you would expect, longer than the Texas Supreme Court’s guidelines for contested
family law cases, and longer than the trial court’s publicly stated goals would suggest it

would remain pending. At this juncture, however, the Relator has not presented us

with a petition, a record, or legal issue upon which we can grant relief. It may be,

however, that if the situation is not finalized, he will be able to obtain some form of

relief in the future.

        We begin by noting that the form of the petition is woefully deficient. It contains

almost none of the elements of a proper Petition for Writ of Mandamus. TEX. R. APP. P.

52. Neither it nor the record is properly verified. Id. 52.3; 52.7. Further, while the

Relator provided a record that has some of the documents needed to determine whether

the Court should compel the trial court to take action, it is inadequate in other respects.

In this regard, a copy of the underlying live pleadings of the parties would be useful to

see and understand why the dispute may be more complex or why it has taken so long

to resolve.       Likewise, the principle complaint raised in this proceeding is that the

Relator would like to have the child visit a therapist that he considers neutral and has

no connection to the mother and to otherwise compel modification of the temporary

orders that they have apparently been operating under for 8 years. However, the

temporary order is not part of the record that has been filed with this Court. Further,

there is no reporter’s record for the hearing that was started on October 30, 2008.

        These procedural deficiencies are not, however, the reason that we are denying

the Petition. We would notify the Relator of the deficiencies in the Petition and Record

and allow him the opportunity to correct them, if that was the only problem. The

problems for the Relator are more substantive.




In re Steinbeck                                                                       Page 2
        Petitioner filed a Motion to Modify Temporary Orders on October 14, 2008, after

apparently operating under those orders for 8 years. He obtained a hearing on the

motion, albeit for only 20 minutes of evidence, on October 30, 2008. At that time, the

trial court recessed the hearing and it has not been resumed. Upon these facts, even if

properly verified, we could not hold that the trial court has abused its discretion in

failing to timely resume the hearing. Having waited 8 years to seek to modify the

temporary orders, without doing more to have the trial court bring this matter to a

conclusion than is revealed by this record, we cannot conclude that the urgency is such

that the trial court failed to timely proceed to a disposition of this hearing and the

related motion. See In re Keeter, 134 S.W.3d 250, 253 (Tex. App.—Waco 2003, orig.

proceeding). Accordingly, this specific request for mandamus relief, item number 2 in

his prayer—that we compel the trial court to resume the October 30, 2008 hearing, is

denied.

        Item 1 of Relator’s prayer, which is that we compel the trial court to allow him to

place his son in child therapy [with a therapist of the Relator’s choosing], also must be

denied. The petition indicates that the therapist the child is currently seeing is too close

to the mother to allow proper therapy. But this is a contested issue to be resolved by

the hearing that has not been concluded and thus it would be premature for us to

compel a particular result, which we, nevertheless, do not have the authority to grant.

When the trial court has not ruled on requested relief, we are limited to compelling the

trial court to make a ruling, not to make a specific ruling. See State ex rel. Curry v. Gray,

726 S.W.2d 125, 128 (Tex. Crim. App. 1987). Accordingly, this specific request is denied.




In re Steinbeck                                                                        Page 3
        Likewise, item 3 in the Relator’s prayer, that we compel the trial court to require

the mother to comply with the trial Court’s standing order, would require us to insert

ourselves into a pending hearing and compel a particular ruling by the trial court. For

the reasons stated above, we do not have the authority to do this in this proceeding.

Accordingly, this specific request is denied.

        Finally, the Relator asks that we compel the trial court to set the matter for a jury

trial date. The problem with this request, item 4 in his prayer for relief, is that there is

no showing that he has requested a setting and that it has been denied. While the

length of time that this matter has been pending is very troubling, there is nothing in

this record to show that the delay has been the result of, or attributable to, the trial

court’s failure to set it for trial. Accordingly, this specific request is denied.

        Having denied each of the specific requests for mandamus relief, the Relator’s

petition is denied.


                                            TOM GRAY
                                            Chief Justice

Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
Petition denied
Opinion delivered and filed January 21, 2009.
[CV06]




In re Steinbeck                                                                        Page 4
