Davis v. Houston , 1987 Tex. App. LEXIS 8104 ( 1987 )

734 S.W.2d 210 (1987)

Kerry Brent DAVIS, Relator,
v.
Hon. Sam HOUSTON, Respondent.

No. 2-87-107-CV.

Court of Appeals of Texas, Fort Worth.

July 30, 1987.

Mike Gregory, Denton, for relator.

Robert J. Glasgow, Stephenville, for Respondent, Cynthia Marie Davis.

Before JOE SPURLOCK, II, HILL and KELTNER, JJ.

OPINION

KELTNER, Justice.

The issue in this mandamus proceeding is whether a person, other than an alleged father, has standing to challenge paternity pursuant to TEX.FAM.CODE ANN. sec. 12.06(a) (Vernon 1986). Kerry Brent Davis contends that he is the only person who has standing to deny his paternity, because the children in question were born and conceived during his marriage to Cynthia Marie Davis. We granted leave to file the petition for a writ of mandamus, but we now deny the petition for writ of mandamus.

The facts in this case are simple. Kerry and Cynthia were married on September 29, 1979. They had two children during this marriage: Preston (born in 1983) and Jeffery (born in 1985). Kerry filed for divorce in February 1986, requesting custody of the children. Subsequently, Cynthia filed a counterclaim and a cross-petition, alleging that Kerry was not the father of the children and requested a blood test. In an amended petition, Cynthia alleged that Robert Lengefeld was the biological father and requested that the court establish Lengefeld's paternity with the children. Judge Houston ordered Kerry to submit to the blood test over his objection. Lengefeld filed a petition of intervention. Kerry seeks a writ of mandamus from this court to order Judge Houston to rescind his order regarding Kerry's blood test. We decline to issue the writ.

Since the petition was filed, Senate Bill 1123 has passed the legislature. The bill was signed into law by the Governor on June 19, 1987 and was effective as of that date. This Bill amended section 12.06(a) of the Family Code which now provides that either the husband or wife may deny the husband's paternity. As a result, the petition for writ of mandamus is denied.