in Re the Dallas Group of America, Inc. and Action Personnel, Inc. , 434 S.W.3d 647 ( 2014 )

Opinion issued May 1, 2014.
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-14-00230-CV
———————————
IN RE THE DALLAS GROUP OF AMERICA, INC. AND ACTION
PERSONNEL, INC., Relators
Original Proceeding on Petition for Writ of Mandamus
and
————————————
NO. 01-14-00282-CV
———————————
IN RE A-B-C PACKAGING MACHINE CORPORATION, Relator
Original Proceeding on Petition for Writ of Mandamus
OPINION
Virgel James Stoker was killed in a workplace accident. The Dallas Group
of America, Inc., Action Personnel, Inc., and A-B-C Packaging Machine
Corporation, the relators, are defendants in a wrongful death suit arising from the
accident. The relators seek mandamus relief from the trial court’s order denying
their requests for genetic testing. The requested genetic tests involve two minor
children, whose mothers have asserted wrongful death claims on their behalf, as
beneficiaries of Stoker’s estate. 1 At the time of his death, Stoker had
acknowledged paternity of these two children, and the family courts had affixed his
obligation to support them through court orders. Because the family courts had
adjudicated Stoker’s paternity and support obligations before his death, and those
court orders remain unchallenged by anyone in a position to challenge them, we
conclude that the trial court properly denied the relators’ genetic testing requests.
Accordingly, we deny the requested mandamus relief.
1
The underlying case for both proceedings is Fredreka Denise Hayes, as Next
Friend of K.D.S., a minor; Brittney Harmanson, as Next Friend of A.S., a minor;
and Dennis Sheehan as the Personal Representative of the Estate of Virgel James
Stoker v. The Dallas Group of America, Inc., Action Personnel, Inc., and A-B-C
Packaging Machine Corp., cause number PR0073327-A, pending in the Probate
Court of Galveston County, Texas, the Honorable Kimberly Sullivan presiding.
After this Court heard argument, relators Dallas Group and Action personnel
announced a settlement in the trial court, but that agreement has not been
finalized, and the parties have not moved to dismiss this appellate cause. The
claim against A-B-C remains pending; given that this claim remains, we proceed
with issuance of our opinion. See TEX. R. APP. P. 42.1(a).
2
Background
A.S., a girl, was born in July 2010 to Brittney Harmanson. Harmanson and
Stoker signed an “Acknowledgment of Paternity,” in which they confirmed under
penalty of perjury that: (1) Stoker was the biological father of A.S.; (2) each parent
had been given written and oral notice of the legal benefits and consequences of
paternity; (3) no other man had filed an acknowledgment of paternity regarding
A.S.; (4) no court had named another man as father of A.S.; (5) Stoker had not
been genetically tested to determine if he was the father; and (6) Harmanson was
not married to anyone else either at the time of A.S.’s birth or within the preceding
300 days.
In October 2010, a trial court entered an agreed child support review order.
In the agreed order, the trial court established Stoker’s child support obligations
and his rights of access to A.S. The district court found that “[t]he parent-child
relationship was established between [Stoker] and [A.S.] when a properly executed
Acknowledgment of Paternity was filed with the Vital Statistics Unit pursuant to
Texas Family Code, Chapter 160.”
In October 2011, K.D.S., a boy, was born to Fredreka Hayes. In December
2011, Stoker and Hayes signed an “Admission of Paternity and Waiver of Genetic
Testing,” declaring under penalty of perjury that: (1) Stoker was the biological
father of K.D.S.; (2) each was given the opportunity to have a genetic test
3
performed to determine whether Stoker was the father of K.D.S.; and (3) each had
voluntarily and knowingly declined such a test. Based on this evidence, a trial
court entered a child support review order, establishing Stoker’s child support
obligations and rights of access to K.D.S.
While these orders were in place, relatives recount that Stoker expressed
doubt about whether he was truly the biological father of A.S. and K.D.S. For
example, he wrote in December 2010 to his half-sister, Latoya Howard, “I decided
[in October 2010] that if I thought [A.S.] was mine I should get the DNA test to be
sure and then I should try to get custody of her.” He also wrote to Howard on
January 21, 2012,
I’m going to save my money and get DNA tests done on both of those
kids. If they’re mine, I can’t do nothing but charge it to the game. If
they are not then I can get away from all this bickering. . . . But them
people wanna lock [me] up if I don’t sign those papers are [sic] pay
$700 dollars [sic] for DNA.
In addition, Howard averred that Stoker expressed doubt about his biological
relationship to the children on other occasions. According to Howard, Stoker had
claimed to her that the Texas Attorney General’s office had pressured him to sign
the acknowledgments of paternity.
According to Stoker’s cousin Bobbie Sanford, Stoker “knew that [A.S.] was
not his child,” A.S. did not resemble Stoker, and Stoker did not have enough
money to pay for the genetic testing of A.S. Another cousin, Kizzie Mason,
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testified that Stoker believed that Harmanson had been intimate with other men
during the time that she had become pregnant with A.S. Janice Stoker, Stoker’s
mother, also testified that A.S. did not resemble Stoker; she, too, averred that
Stoker was uncertain as to his paternity and was pressured into acknowledging it.
In February 2012, Stoker, then 26 years old, was employed by Action and
performing work for Dallas Group. On February 11, Stoker was found dead,
pinned by equipment at Dallas Group’s Texas City facility.
Course of proceedings
Stoker’s death led to proceedings in four different courts: district, probate,
and family courts in Galveston County, and family court in Harris County. This
petition for a writ of mandamus arises out of the Galveston County probate court’s
order, but the procedural histories of the four cases intertwine.
First, Hayes, as next friend of K.D.S., brought suit in district court in
Galveston County against Dallas Group and Action, alleging negligence, gross
negligence, and products liability, and seeking injunctive relief to protect the scene
of Stoker’s death and allow Hayes to inspect it.
Second, the Galveston County probate court, which was overseeing the
administration of Stoker’s estate, appointed Janice Stoker as estate administrator.
Janice, as administrator, swore to and filed an “Application to Determine
Heirship,” in which she identified A.S. and K.D.S. as “two children born to or
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adopted by” Stoker. The probate court later removed Janice as administrator and
appointed Dennis Sheehan as the personal representative of the estate. Sheehan
also filed an application to determine heirship, upon which the probate court
entered judgment declaring A.S. and K.D.S. to be Stoker’s children.
The original action, the Galveston County district court suit, has since been
transferred to the probate court and consolidated with proceedings there as a
severed case. Harmanson, as next friend of A.S., joined the suit as a plaintiff, as
did Sheehan, as personal representative of Stoker’s estate. Stoker’s parents, Virgil
Smith and Janice Stoker, intervened as plaintiffs. The wrongful death plaintiffs
named A-B-C as an additional defendant, contending that A-B-C manufactured
equipment that caused Stoker’s death.
Third, before the probate court removed Janice Stoker as the administrator
of Stoker’s estate, she initiated a proceeding in Galveston County family court, in
which she requested genetic testing of A.S. and sought to terminate the parent-
child relationship between Stoker and A.S. The family court held a hearing on
Janice’s motion and on a motion to dismiss the proceeding, but took both motions
under advisement. Although the record before us is unclear on the exact resolution
of that proceeding, it apparently was dismissed after Janice’s removal as
administrator, and the family court thus did not decide the motion to compel
testing on its merit.
6
Fourth, while still in her role as administrator, Janice also filed a proceeding
in family court in Harris County, in which she requested genetic testing of K.D.S.
and sought to terminate the parent-child relationship between Stoker and K.D.S.
That proceeding was nonsuited after Janice was removed as administrator of
Stoker’s estate.
Meanwhile, the probate court in Galveston appointed an attorney ad litem to
represent Stoker’s known and unknown heirs. The attorney ad litem moved to
compel genetic testing of both A.S. and K.D.S. The probate court abated the
attorney ad litem’s motion pending the outcome of Janice’s motions to compel
testing. The record before us does not indicate whether the probate court ever
resolved the attorney ad litem’s motion, but during an heirship hearing, the probate
court stated:
The DNA issue has all been resolved. It was resolved because the
306[th] District Court was the court for one of the children. And that
Court said: no, you don’t have a right to come back for DNA [testing]
because it’s been more than the time elapsed. The law that they were
citing was a new law that gave a father the right to go back, not a
father’s parent or an administrator of a father’s estate.
The “new law,” to which the probate court referred, is section 161.005 of the Texas
Family Code. TEX. FAM. CODE ANN. § 161.005 (West 2014). As amended, that
section allows a man who has acknowledged paternity without benefit of genetic
testing to seek testing and to terminate his parent-child relationship if the testing
excludes the man as the father. Id.; Act of Apr. 14, 2011, 82nd Leg., R.S., ch. 54,
7
§ 2, sec. 161.005, 2011 Tex. Gen. Laws 86, 87–88 (current version at TEX. FAM.
CODE ANN. §§ 161.005(c)–(o)) (creating procedure for such challenges).
Stoker had never initiated any proceeding seeking genetic testing, but the
relators seek it in discovery in this case, arguing that it is relevant based on
evidence that Stoker had doubts that he was the biological father of the children.
Hayes and Harmanson opposed the request. After a hearing, the probate court
denied the relators’ requests for genetic testing.
Standard of review
Mandamus relief is available when a trial court has committed an abuse of
its discretion for which there is no adequate remedy by appeal. In re Odyssey
Healthcare, Inc., 310 S.W.3d 419, 422 (Tex. 2010) (per curiam) (orig.
proceeding). A trial court has no discretion in determining what the law is or in
applying the law to the particular facts, even when the law is unsettled. In re
Prudential Ins. Co. of Am., 148 S.W.3d 124, 135 (Tex. 2004) (orig. proceeding).
In particular, mandamus relief is available when a trial court’s discovery order
prevents discovery that goes to the heart of litigation. In re Colonial Pipeline Co.,
968 S.W.2d 938, 942 (Tex. 1998).
Discussion
The relators move to compel genetic testing pursuant to Texas Rule of Civil
Procedure 204.1, which permits a party to move for an order compelling another
8
party to “submit to a physical . . . examination by a qualified physician.” TEX. R.
CIV. P. 204.1(a); see also TEX. R. CIV. P. 192.1(g) (listing “motions for mental or
physical examinations” among permissible forms of discovery). A trial court may
order a physical examination “only for good cause shown and only . . . when
the . . . physical condition (including the blood group) of a party, or of a person in
the custody, conservatorship or under the legal control of a party, is in
controversy.” TEX. R. CIV. P. 204.1(c). The relators contend that genetic testing is
relevant to their challenge to the children’s standing to bring wrongful death claims
because, unless Stoker is their biological father, the children are not wrongful
death beneficiaries.
Standing under the Wrongful Death Act
The common law did not recognize a cause of action for wrongful death.
Bala v. Maxwell, 909 S.W.2d 889, 893 (Tex. 1995); Moreno v. Sterling Drug, Inc.,
787 S.W.2d 348, 356 (Tex. 1990). In Texas, however, the Legislature has
authorized claims for wrongful death by statute. The Texas Wrongful Death Act
provides that “[t]he surviving spouse, children, and parents of the deceased” may
sue for redress for the wrongful death of another. TEX. CIV. PRAC. & REM. CODE
ANN. § 71.004(b) (West 2014); see generally id. §§ 71.001–.011. These
enumerated relatives and, in certain circumstances, the deceased individual’s
executor or administrator are the sole parties with standing to bring a Wrongful
9
Death Act claim. Id. §§ 71.004(b)–(c); Transp. Ins. Co. v. Faircloth, 898 S.W.2d
269, 275 (Tex. 1995) (“Under the wrongful death statute . . . only biological or
legally-adopted children of the decedent have standing.”); Brown v. Edwards
Transfer Co., 764 S.W.2d 220, 222 (Tex. 1988). The Supreme Court of Texas has
held that “‘children,’ in the Wrongful Death Act, means filial descendants,” and
includes a decedent’s biological and adopted children. Brown, 764 S.W.2d at 223;
see also Transp. Ins. Co., 898 S.W.2d at 275 (acknowledging standing of legally-
adopted children); Garza v. Maverick Mkt., Inc., 768 S.W.2d 273, 275 (Tex. 1989).
The question presented by the relators is whether it includes legally acknowledged
children under the modern Family Code, or whether that acknowledgment is
merely evidence of paternity and is subject to collateral attack in a wrongful death
suit with the results of genetic testing.
Paternity defined by statute
A man is presumed to be the father of a child when he is married to the
child’s mother and the child is born during the marriage or, under certain
circumstances, after the marriage has ended. TEX. FAM. CODE ANN. § 160.204(a).
Further, a man may voluntarily acknowledge his paternity of a child in a writing
that complies with the Family Code. TEX. FAM. CODE ANN. § 160.302(a). With
exceptions not relevant here, “a valid acknowledgment of paternity filed with the
bureau of vital statistics is the equivalent of an adjudication of the paternity of a
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child.” Id. §§ 160.305(a), 160.302(a)(5) (parents must acknowledge this effect);
see also id. §§ 160.201(b)(2) (father-child relationship is established by such
acknowledgment), 160.201(b)(3) (adjudication of man’s paternity). “Unless
parental rights are terminated, a parent-child relationship established under
[Chapter 160 of the Family Code] applies for all purposes, except as otherwise
provided by another law of this state.” Id. § 160.203.
Under the Estates Code, “[f]or purposes of inheritance, a child is the child of
the child’s biological father if: (1) the child is born under circumstances described
by Section 160.201, Family Code; (2) the child is adjudicated to be the child of the
father by court decree under Chapter 160, Family Code; (3) the child was adopted
by the child’s father; or (4) the father executed an acknowledgment of paternity
under Subchapter D, Chapter 160, Family Code . . . .” TEX. EST. CODE ANN.
§ 201.052(a) (West 2014).
In contrast to the Family Code and Estates Code, the Wrongful Death Act
does not expressly define who may be considered a child of a decedent; nor does it
expressly incorporate the Family Code or the Estates Code. Garza, 768 S.W.2d at
275; Brown, 764 S.W.2d at 222.
Challenges to paternity
The Family Code provides that specifically enumerated individuals may
establish or challenge paternity by genetic testing under narrowly defined
11
parameters. First, the parties to an initial proceeding to determine parentage may
request a court order that a child and “other designated individuals” submit to
genetic testing. TEX. FAM. CODE ANN. § 160.502(a). Second, testing is admissible
to adjudicate parentage “with the consent of both the mother and the presumed,
acknowledged, or adjudicated father.” Id. § 160.621(c)(1). Third, a man who
previously had acknowledged his paternity or been adjudicated the father of a child
without genetic testing, may, pursuant to the 2011 amendment to section 161.005,
establish or challenge that paternity with genetic testing. Id. § 161.005; Act of
Apr. 14, 2011, 82nd Leg., R.S., ch. 54, § 2, sec. 161.005, 2011 Tex. Gen. Laws 86,
87–88 (current version at TEX. FAM. CODE ANN. §§ 161.005(c)–(o)). But only the
acknowledged father may raise such a challenge, and only within two years of
learning the facts that lead him to question his paternity. See Act of May 17, 2013,
83rd Leg., R.S., ch. 227, § 1, sec. 161.005, 2013 Tex. Sess. Law Serv. 967, 968
(West) (codified at TEX. FAM. CODE ANN. § 161.005) (changing deadline for
making such challenge from “first anniversary of the date on which the petitioner
becomes aware of the facts alleged in the petition indicating that the petitioner is
not the child’s genetic father” to “second anniversary” of such date). In addition,
the signer of an acknowledgment of paternity may later challenge its validity, but
only until the time that a court affixes parental obligations based on the
acknowledgment. See TEX. FAM. CODE ANN. § 160.308 (allowing signatory of
12
acknowledgment of paternity to challenge acknowledgment on bases of fraud,
duress, or material mistake of fact, but only before issuance of order affecting child
identified in acknowledgment).
Leaving aside these specific provisions relating to genetic testing, the Family
Code also generally limits the class of persons who may challenge an
acknowledgment of paternity. Section 160.309(d) provides that “[a] proceeding to
challenge an acknowledgment of paternity . . . shall be conducted in the same
manner as a proceeding to adjudicate parentage under Subchapter G.” TEX. FAM.
CODE ANN. § 160.309(d). Section 160.602 of Subchapter G, in turn, enumerates
the persons who may adjudicate parentage: (1) the child; (2) the mother; (3) a man
whose paternity is to be adjudicated; (4) a support enforcement agency or other
government agency authorized by other law; (5) an authorized adoption or child-
placement agency;(6) an authorized representative of an incapacitated or deceased
person or minor who would otherwise be entitled to maintain a proceeding; (7) a
person closely related to a deceased mother; and (8) an intended parent. TEX. FAM.
CODE ANN. § 160.602(a). The relators do not fall within the categories of
individuals with standing under the Family Code to challenge Stoker’s
acknowledgment.2
2
The relators argue that section 160.609(b) permits them to seek an adjudication of
paternity of A.S. and K.D.S. See TEX. FAM. CODE ANN. § 160.609(b). That
section requires that
13
Effect of an acknowledgment of paternity under the Wrongful Death Act
Nevertheless, the relators argue that they have standing to make a paternity
challenge under the Wrongful Death Act, relying on the Texas Supreme Court’s
decisions in Brown v. Edwards Transfer Co., 764 S.W.2d 220 (Tex. 1988) and
Garza v. Maverick Market, Inc., 768 S.W.2d 273 (Tex. 1989). In these wrongful
death cases, the Court held that children must prove by clear and convincing
evidence that they are the biological children of the decedent to be wrongful death
beneficiaries. Because the evidence places Stoker’s relationship with A.S. and
K.D.S. in controversy, the relators contend, genetic testing is relevant and
discoverable in this wrongful death case.
In Brown, the earliest of these decisions, the Supreme Court addressed
“whether the illegitimate children of a male decedent may recover under the Texas
Wrongful Death Act.” Brown, 764 S.W.2d at 221. In that case, the decedent had
admitted to third persons that he was the father of three children, but there is no
If a child has an acknowledged father or an adjudicated father, an
individual, other than the child, who is not a signatory to the
acknowledgment or a party to the adjudication and who seeks an
adjudication of paternity of the child must commence a proceeding not later
than the fourth anniversary of the effective date of the acknowledgment or
adjudication.
Id. None of the relators, however, is an “individual” as the Family Code defines
it. See, e.g., id. §§ 160.102(3) (defining “child” as “an individual of any age”),
160.102(6)–(11), (16). Moreover, none of them has commenced a proceeding
under the Family Code within the meaning of section 160.609.
14
indication in the Court’s opinion that he had legally acknowledged his paternity or
been adjudged to be the children’s father. Id. at 222. The Court held that, as “filial
descendants,” children who were not born during a father’s marriage have standing
to recover under the Act. Id. at 222–23. It further held that proof of a child’s
standing as a beneficiary is a necessary showing under the Wrongful Death Act
and subject to a clear and convincing evidence standard, the same standard adopted
by the Family Code and former Probate Code. Id.
The Garza Court took this analysis a step further, addressing the question
“whether . . . a posthumously-born and unrecognized illegitimate child may sue for
the wrongful death of his father under the Texas Wrongful Death Act.” Garza,
768 S.W.2d at 274. In that case, the putative father also had never adjudicated his
legal paternity of the child. The court held that it was “inappropriate to incorporate
the requirements of legitimation under the Family Code into the Wrongful Death
Act,” and that “an illegitimate child need not be ‘recognized’ in accordance with
other bodies of law not specifically applicable to the Wrongful Death Act.” Id. at
275. The relators contend that, in light of these authorities, the trial court abused
its discretion in treating Stoker’s paternity of A.S. and K.D.S. as a settled question.
We reject that contention. Both Brown and Garza addressed the standing of
children as wrongful death beneficiaries when neither marriage nor a court
proceeding had determined their legal father. See Garza, 768 S.W.2d at 275;
15
Brown, 764 S.W.2d at 221–22. At the time that those cases were decided,
“legitimate” and “illegitimate” were defined terms in the Family Code, with the
latter used to describe, essentially, children born outside of marriage and never
legally acknowledged pursuant to various procedures of the Family Code. Garza,
768 S.W.2d at 274–75; Brown, 764 S.W.2d at 222; see also TEX. FAM. CODE ANN.
§ 11.01(8) (West 1988) (defining “illegitimate child” as “a child who is not and has
never been the legitimate child of a man,” whose paternity has not been
adjudicated, and whose parent child-relationship with a biological mother and
father, if any, has not been terminated), repealed by Act of May 26, 1989, 71st
Leg., R.S., ch. 375, § 1, sec. 11.01, 1989 Tex. Gen Laws 1477, 1477; id. § 12.02(c)
(“A child is the legitimate child of a man if the man’s paternity is established under
the provisions of Chapter 13 of this code.”), repealed by Act of May 26, 1989, 71st
Leg., R.S., ch. 20, § 6, sec. 13.02, 1989 Tex. Gen. Laws 1477, 1478–79; id.
§ 13.21 (providing methods by which a child could be voluntarily legitimized),
amended by Act of May 26, 1989, 71st Leg., R.S., ch. 375, § 17, sec. 13.21, 1989
Tex. Gen Laws 1477, 1481–82, and repealed by Act of Apr. 6, 1995, 74th Leg.,
R.S., ch. 20, § 2, 1995 Tex. Gen. Laws 113, 282; see also Espree v. Guillory, 753
S.W.2d 722, 724 (Tex. App.—Houston [1st Dist.] 1988, no pet.) (discussing
procedures for voluntary legitimation under statutes then in effect). The
Legislature has since abolished these distinctions and procedures.
16
It is in this context that we review the Supreme Court’s jurisprudence. The
Brown Court’s holding that “‘children,’ in the Wrongful Death Act, means filial
descendants” was not a statement of the obvious, but addressed the then-open
question of whether a child must be legally recognized to acquire standing in a
wrongful death suit. Brown, 764 S.W.2d at 223. Likewise, the Garza Court’s
refusal to incorporate “the legitimation provisions of the Family Code” into the
Wrongful Death Act referred to the then-applicable procedures available during the
life of a father for changing a child’s legal status. Garza, 768 S.W.2d at 275.
The relators argue that Garza compels the conclusion that an
acknowledgment of paternity under the Family Code will not establish standing to
sue for wrongful death. But that argument fails to consider that both Garza and
Brown addressed cases in which legal paternity had never been established; their
facts are inapposite. With the adjudication of Stoker’s paternity in this case at its
settled conclusion before Stoker’s death, the trial court was not bound to re-open
the issue in a wrongful death proceeding by compelling the children to undergo
genetic testing.
The relators also rely on our sister court’s decision in Gurka v. Gurka, 402
S.W.3d 341 (Tex. App.—Houston [14th Dist.] 2013, no. pet.). In Gurka, the
purported father of a deceased child brought a wrongful death claim, but the
defendants challenged the father’s standing on grounds that he was not the
17
biological father of the child. Gurka, 402 S.W.3d at 343. During the course of a
prior paternity action, the father acknowledged his relationship to both the
deceased child and another child by the same mother, although no DNA test or
blood test was performed at that time. Id. at 343–44. The trial court in the
wrongful death action admitted the family court’s order acknowledging paternity,
but conducted a bench trial in which the parties adduced evidence of the father’s
paternity. Id. at 344. The mother testified that the purported father was not the
biological father. Id. at 345. At least some evidence cast doubt on the plaintiff
father’s paternity, but the parties did not submit any genetic testing results to the
court. Id. at 344–46. The trial court determined that the plaintiff father was the
child’s biological father. Id. at 346. The wrongful death defendants appealed,
arguing that the trial court’s decision lacked legally sufficient evidence to support
it. Id. Our sister court affirmed the trial court’s ruling, holding that the evidence
presented was sufficient to find that the plaintiff was the deceased child’s father.
Id. at 349–50. But the Gurka court did not address whether the family court order
was dispositive or whether the trial court should have compelled genetic testing.
Further, in that case, the mother, one of the parties with standing to establish or
challenge paternity under the Family Code, is the party that challenged the
paternity of the plaintiff father. Id. at 345. By contrast, in this case, no parent of
either A.S. or K.D.S. challenged Stoker’s relationship to the children.
18
Stoker’s paternity of both A.S. and K.D.S. was established as a matter of law
under the Family Code before his death, and Stoker never challenged his paternity
during his lifetime. The Family Code allowed Stoker to rescind his
acknowledgments of paternity, but only until the earlier of the sixtieth day after the
effective date of each acknowledgment or “the date a proceeding to which the
signatory is a party is initiated before a court to adjudicate an issue relating to the
child, including a proceeding that establishes child support.” TEX. FAM. CODE
ANN. § 160.307(a) (West 2014). These deadlines ran as to each child well before
Stoker’s death, and Stoker did not rescind the acknowledgments. After those
periods expired, Stoker had the opportunity to “commence a proceeding to
challenge [each] acknowledgment” if he could establish that genetic testing had
failed to identify him as the father of the child in question. Id. § 160.308(a), (d).
But this challenge was also only available before entry of a child support order
affecting the child in question, and Stoker did not make use of these procedures.
Id. § 160.308(a). Finally, Stoker could have sought to terminate his relationship
with each child. Id. § 161.005(e). None of these procedures grants third-party,
non-family defendants in a wrongful death action standing to challenge Stoker’s
paternity of the children. At the time of his death, Stoker’s paternity of each child
had been fully adjudicated by Texas courts. To re-open the issue after Stoker’s
death is inconsistent with the Legislature’s proviso that “a parent-child relationship
19
established under [Chapter 160 of the Family Code] applies for all purposes,
except as otherwise provided by another law of this state.” Id. § 160.203.
Conclusion
Given that their father’s legal paternity had been established at the time of
his death, the trial court properly rejected the relator’s contention that good cause
exists for compelling genetic testing, as a means of requiring A.S. and K.D.S. to
re-confirm their relationship to him. See TEX. R. CIV. P. 204.1(c). Accordingly,
we deny the petitions for writ of mandamus. We deny all pending motions as
moot.
Jane Bland
Justice
Panel consists of Justices Keyes, Bland, and Brown.
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