Earl Henry Shelton Jr. v. Irvin Mitchell and Irene Mitchell ( 2010 )

Opinion filed September 30, 2010
In The
Eleventh Court of Appeals
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No. 11-09-00300-CV
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EARL HENRY SHELTON JR., Appellant
V.
IRVIN MITCHELL AND IRENE MITCHELL, Appellees
On Appeal from the 318th District Court
Midland County, Texas
Trial Court Cause No. FM-42,453
MEMORANDUM OPINION
While he was confined in the Roach Unit of the Texas Department of Criminal Justice –
Institutional Division, Earl Henry Shelton Jr. filed a pro se suit seeking to establish that he was
the father of S.A.J. (boy) and S.A.J. (female) and to be appointed sole managing conservator of
both children. In the same proceeding, Shelton sued the Thomas Funeral Home for the alleged
embalming of a body without the family’s consent. After a hearing in which Shelton appeared
via teleconference, the trial court denied Shelton’s claims and entered a take-nothing judgment.
We affirm.
The trial court entered findings of fact and conclusions of law. The trial court found that
both children were over the age of eighteen when Shelton filed his suit and that neither child had
a presumed, acknowledged, or adjudicated father. The trial court concluded that Shelton had no
standing to adjudicate parentage of the children.
On appeal, Shelton argues that the trial court failed to conduct a ―required‖ pretrial
conference pursuant to TEX. FAM. CODE §§ 13.04, 13.05 (repealed 1995), that the evidence is
factually insufficient, that the ―clear and convincing‖ evidence establishes that the trial court
abused its discretion when it did not conduct a hearing on his motion for new trial, that his suit to
establish parentage was not ―time barred,‖ and that the trial court abused its discretion and
violated his due process rights concerning his claims against the Thomas Funeral Home and his
request for the body of Lisa Joseph to be exhumed.
TEX. FAM. CODE ANN. § 160.602 (Vernon 2008) governs standing in proceedings to
adjudicate parentage. Subsection (a)(3) of that section grants standing in these type suits to ―a
man whose paternity of the child is to be adjudicated.‖ However, subsection (b) of that section
provides that, ―[a]fter the date a child having no presumed, acknowledged, or adjudicated father
becomes an adult, a proceeding to adjudicate the parentage of the adult child may only be
maintained by the adult child.‖ While subsection (a)(3) appears to grant Shelton standing,
subsection (b) limits that standing. In re Sullivan, 157 S.W.3d 911 (Tex. App.—Houston [14th
Dist.] 2005, orig. proceeding).
It is undisputed that both children were adults at the time Shelton filed this lawsuit.
There is no evidence in the record regarding the presumed, acknowledged, or adjudicated father
of either child. The burden of proof was upon Shelton to show that he had standing to bring this
lawsuit; he did not meet that burden. In re H.G., 267 S.W.3d 120 (Tex. App.—San Antonio
2008, pet. denied) (in a suit affecting parent-child relationship, standing is governed by the Texas
Family Code, and one seeking relief must allege and establish standards as provided by the
statutes). Therefore, Shelton’s issues on appeal related to the parentage adjudication are
overruled.
We have liberally examined Shelton’s numerous filings in the trial court and in this court
and cannot determine that he has properly pleaded any causes of action against Thomas Funeral
Home. Even if we assume that Thomas Funeral Home admitted all of the facts in those filings,
there is no cause of action alleged upon which Shelton could recover. In its order, the trial court
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found and ordered that all relief requested in Shelton’s petition be denied. We cannot say that it
erred when it so ordered. All arguments relative to the funeral home claim are overruled.
The judgment of the trial court is affirmed.
PER CURIAM
September 30, 2010
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.
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