City of Austin D/B/A Austin Energy v. Maria Del Rosario Membreno Lopez as Next Friend of Jaime Antonio Membreno Lopez ( 2018 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-18-00107-CV
City of Austin d/b/a Austin Energy, Appellant
v.
Maria Del Rosario Membreno Lopez as Next Friend of
Jaime Antonio Membreno Lopez, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT
NO. D-1-GN-15-004371, HONORABLE ERIC SHEPPERD, JUDGE PRESIDING
MEMORANDUM OPINION
This is an appeal from an order by the district court of Travis County denying a plea
to the jurisdiction in a wrongful death case. Appellant is the City of Austin (the City), and appellee
is Maria Del Rosario Membreno Lopez (Maria), as next friend for her minor son. This Court will
affirm the order.
Jaime Membreno died in 2009 when he came in contact with one of the City’s
overhead power lines while working on a construction job in Austin. Membreno was twenty-six
years old and a citizen of El Salvador. Jaime was never married to Maria. She asserts that after his
death she gave birth to Jaime’s son in El Salvador where she lived.
In 2015, Maria filed a wrongful death and survival action against (1) the contractor
who employed Jaime, (2) the owner of the building under construction, and (3) the building’s property
manager, asserting negligence, negligence per se, gross negligence and “premises liability.” Later,
she amended her petition to add an electrical-utility contractor and the City as defendants. She
claimed that the City “failed to use reasonable care to safely operate and maintain the electric-
distribution system and its overhead distribution lines and poles in particular.” The City filed a plea
to the jurisdiction challenging the minor child’s standing to maintain suit pursuant to the Wrongful
Death Statute. See Tex. Civ. Prac. & Rem. Code § 71.004.
When a plea to the jurisdiction challenges the pleadings, the court must determine
whether the pleader has alleged facts that affirmatively demonstrate the court’s jurisdiction to hear
the cause. Texas Ass’n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993). If a
plea to the jurisdiction challenges the existence of jurisdictional facts, the court considers relevant
evidence submitted by the parties. Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217,
227 (Tex. 2004).
The City’s primary argument challenges the existence of jurisdictional facts. In the
trial court and in this Court, the City has taken the position that to have standing to sue under the
Wrongful Death Act, an illegitimate child must comply with the requirements of Texas Family Code
section 160.201(b), thereby establishing a father-child relationship.1 The City asserts correctly that
the Family Code requirements to establish the father-child relationship have not been met here.
But nearly thirty years ago, the Supreme Court held contrary to the City’s argument. See Garza v.
1
The father-child relationship is established by (1) an unrebutted presumption of the man’s
paternity, (2) an acknowledgement of paternity, (3) an adjudication of paternity, (4) adoption of the
child, or (5) the man’s consent to assisted reproduction by his wife, which results in the child’s birth.
Tex. Fam. Code § 160.201(b).
2
Maverick Mkt., Inc., 768 S.W.2d 273, 275 (Tex. 1989) (“[I]t is inappropriate to incorporate the
requirements of legitimation under the Family Code into the Wrongful Death Act.”).
The City also claims that there is no proof that the minor child is the decedent’s
biological son. Maria submitted the following jurisdictional evidence: two deposition excerpts,
two affidavits, and two DNA tests. A summary of that proof follows.
Maria swore that the decedent was the father of the child. In May and June 2008, she
was living with the decedent in his house in El Salvador. Decedent’s mother and brother also lived
there. The child was conceived in May or June of 2008. She did not engage in sexual relations with
anyone else except the decedent from January 2008 to March of 2009. She gave birth to the child
on March 2, 2009. The child resembles the decedent. Maria has always told the child that the
decedent was his father. She named the child after the decedent. She also produced a medical record
in which the decedent was named as the father of the child. The DNA tests tend to show that the
child and the decedent’s brother have a 99.8% chance that they are nephew and uncle. The brother
swore that he had never engaged in sexual relations with Maria. We are of the view that Maria
marshaled proof from which the fact finder could conclude that the clear and convincing evidence
showed that her child was the son of the decedent. See id. at 276.
The City also seeks review of Maria’s capacity to assert a personal-injury action
pursuant to the Survival Act.2 The City included the lack-of-capacity complaint in the plea to the
jurisdiction. Lack of capacity to sue, unlike standing, is not a jurisdictional defect. In re Bridgestone
Ams. Tire Operations, LLC, 459 S.W.3d 565, 573 (Tex. 2015). A challenge to a party’s capacity
2
A personal-injury suit survives in “favor of the heirs, legal representatives, and estate of
the injured person.” Tex. Civ. Prac. & Rem. Code § 71.021(b).
3
must be raised by a verified pleading in the trial court. Tex. R. Civ. P. 93(1)–(2); Austin Nursing
Ctr., Inc. v. Lovato, 171 S.W.3d 845, 849 (Tex. 2005).3
Finally, the City asserts that, “Texas law does not provide a jury trial to establish
paternity.” The City argues that the trial court, as finder of fact, should conduct a hearing before trial
to determine the child’s paternity. Maria contends, to the contrary, that at trial on the merits proof
of paternity along with proof on the merits should be received and submitted to the jury for
determination. We doubt that this procedural question is a proper subject for determination in an
appeal from the denial of a plea to the jurisdiction. See State v. Lueck, 290 S.W.3d 876, 881 (Tex.
2009). Moreover, the City did not raise the issue in the plea.
The order denying the plea to the jurisdiction is affirmed.
__________________________________________
Bob E. Shannon, Justice
Before Justices Goodwin, Field, and Shannon*
Affirmed
Filed: July 3, 2018
* Before Bob E. Shannon, Chief Justice (retired), Third Court of Appeals, sitting by assignment.
See Tex. Gov’t Code § 74.003(b).
3
The City filed an unverified “motion to abate” before it filed the plea to the jurisdiction.
The City did not raise capacity in that motion; instead, it claimed lack of standing. The motion to
abate was denied.
4