in Re: The Office of the Attorney General of Texas ( 2007 )

                                                NO. 12-07-00242-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

IN RE:  THE OFFICE OF  §                     

THE ATTORNEY GENERAL         §                      ORIGINAL PROCEEDING

OF TEXAS    §                     

MEMORANDUM OPINION

            The Office of the Attorney General of Texas filed a petition for writ of mandamus challenging the trial court’s order granting the request for genetic testing filed by the real party in interest, Dale Eugene Duke.¹  We conditionally grant the petition.

Background

            Duke divorced Rachel Doretta Horne in 2000. During this proceeding, Duke did not contest the paternity of K.S.  In the final decree of divorce, the trial court found that Duke and Horne were the parents of K.S. and that  Duke should pay child support.  Neither party appealed these findings.

            In 2007, the Attorney General filed a Petition for Confirmation of Non-Agreed Child Support Review Order in which it sought to have the trial court confirm a modification of the child support Duke was to pay.  In response, Duke filed an original answer in which he denied he was the father of K.S. and requested genetic testing. 

            The trial court held an evidentiary hearing on Duke’s request.  At the hearing, Duke testified that during Horne’s pregnancy, he had “a little bit” of doubt that the child was his.  After K.S. was born, Horne told Duke there was no doubt in her mind that he was the father of K.S.  Consequently, at the time of the divorce, Duke believed K.S. was his child and did not raise the issue of paternity. According to Duke, more than four years after the divorce was final, Horne told him that he was not the father of K.S. Horne testified and denied making this statement. 

            Duke contended he had established that Horne had committed extrinsic fraud, which prevented him from previously challenging the paternity of K.S.  The trial court agreed with Duke and granted his request for genetic testing.  The Attorney General then filed a petition for writ of mandamus complaining of the trial court’s order. On the Attorney General’s motion, we stayed the trial court’s order pending the outcome of this proceeding.

Prerequisites to Mandamus

            Mandamus will issue to correct a clear abuse of discretion where there is no adequate remedy by appeal.  In re Cerberus Capital Mgmt., L.P., 164 S.W.3d 379, 382 (Tex. 2005); Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992).  To determine whether the trial court clearly abused its discretion, the reviewing court must consider whether the challenged ruling or order was one compelled by the facts and circumstances or was arbitrary, unreasonable, or reached without reference to any guiding rules or principles.  In re Huag, 175 S.W.3d 449, 451 (Tex. App.–Houston [14th Dist.] 2005, no pet.).  A clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of discretion.  Walker, 827 S.W.2d at 840.  The trial court has no discretion in determining what the law is or applying the law to the facts.  In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135 (Tex. 2004).  An appellate remedy is “adequate” when any benefits to mandamus review are outweighed by the detriments.  Id. at 136.  This determination depends heavily on the circumstances presented and is better guided by general principles than by simple rules.  Id. at 137.

            Duke’s request for genetic testing does not specifically mention a bill of review. It appears, however, that Duke attempted to plead and prove the elements necessary for a bill of review and that the trial court construed his request as a petition for a bill of review.  In our analysis, we will also construe Duke’s request for genetic testing as a petition for a bill of review.  

            The Attorney General contends that Duke’s pleadings are insufficient to warrant a bill of review.  Mandamus is appropriate when a trial court orders the parties to submit to genetic testing if the petition for a bill of review does not adequately plead the bill of review elements.  In re Attorney Gen. of Tex., 184 S.W.3d 925, 929 (Tex. App.–Beaumont 2006, orig. proceeding).  Therefore, the sole issue in this proceeding is whether the trial court abused its discretion in granting the bill of review.  The Attorney General has the burden on this issue.  See In re E. Tex. Med. Ctr. Athens, 154 S.W.3d 933, 935 (Tex. App.–Tyler 2005, orig. proceeding).

Availability of Mandamus

            The final decree of divorce signed by the trial court in 2000 adjudicated Duke as the father of K.S., and the trial court lost plenary power over that decree long ago.  See Tex. R. Civ. P. 329b(c), (d) (plenary power to modify judgment expires not later than 75 days after judgment signed, depending upon whether plenary power extending motions are filed).  After the trial court’s plenary power expires, it cannot set aside a judgment except by bill of review for sufficient cause, filed within the time allowed by law. See Tex. R. Civ. P. 329b(f). 

            A bill of review “is an equitable proceeding brought by a party seeking to set aside a prior judgment that is no longer subject to challenge by a motion for new trial or appeal.”  Caldwell v. Barnes, 154 S.W.3d 93, 96 (Tex. 2004).  Finality of judgments is of fundamental importance to the administration of justice. Martindale v. Reno, 132 S.W.3d 462, 463 (Tex. App.–Eastland 2003, no pet.).  Therefore, setting aside a final judgment must be limited, and a bill of review is proper only in exceptional circumstances.  Id. at 463-64.  To prevail on a bill of review, the petitioner must plead and prove 1) a meritorious claim or defense to the claim supporting the judgment, 2) which was not previously presented because of fraud, accident, or wrongful act of the opposing party, 3) unmixed with any fault or negligence of the petitioner.  Nelson v. Chaney, 193 S.W.3d 161, 165 (Tex. App.–Houston [1st Dist.] 2006, no pet.) (citing Caldwell, 154 S.W.3d at 96).

            Extrinsic fraud will support a bill of review, but intrinsic fraud will not.  Tice v. City of Pasadena, 767 S.W.2d 700, 702 (Tex. 1989).  Extrinsic fraud is wrongful conduct practiced outside the adversary trial that denies a party the opportunity to fully litigate at trial all the rights or defenses that could have been asserted.  In re Attorney Gen. of Tex., 184 S.W.3d at 928.  Extrinsic fraud includes keeping a party away from court, making false promises of compromise, and denying a party knowledge of the suit.  Ince v. Ince, 58 S.W.3d 187, 190 (Tex. App.–Waco 2001, no pet.).  Extrinsic fraud must be collateral to the matter that was actually tried and cannot be something that was either actually or potentially in issue at the trial.  In re Attorney Gen. of Tex., 184 S.W.3d at 928.  By contrast, intrinsic fraud “relates to the merits of the issues which were presented and presumably were or should have been settled in the former action.”  Tice, 767 S.W.2d at 702.  Intrinsic fraud includes using fraudulent instruments, presenting perjured testimony, and any matters that were presented to and considered by the court in the trial.  Id.  The Attorney General argues that Duke has alleged nothing more than intrinsic fraud. We agree.

            Duke did not contest paternity in the divorce action, and the trial court found that Duke and Horne were the parents of K.S.  To establish extrinsic fraud, Duke alleged that Horne misrepresented to him that K.S. was his child.  But Duke could have contested the paternity of K.S. and litigated the issue in the divorce action.  See In re Attorney Gen. of Tex., 184 S.W.3d at 928.  Consequently, Duke has not alleged extrinsic fraud.  See id.; Temple v. Archambo, 161 S.W.3d 217, 225-26 (Tex. App.–Corpus Christi 2005, no pet.).  Because Duke alleges only intrinsic fraud, at most, Duke’s petition for a bill of review is defective.  In re Attorney Gen. of Tex., 184 S.W.3d at 928.  As such, Duke’s allegations were legally insufficient for a bill of review, and the trial court abused its discretion by ordering the genetic testing. ² See id.; Nelson, 193 S.W.3d at 167.

Disposition

            Having concluded that the trial court abused its discretion by granting the request for genetic testing, we conditionally grant mandamus relief.  We trust that the trial court will promptly vacate its order of June 26, 2007 granting Duke’s request for genetic testing.  The writ will issue only if the trial court fails to comply with this court’s opinion and order within ten days.  The trial court shall furnish this court, within the time for compliance with this court’s opinion and order, a certified copy of its order evidencing such compliance.

                                                                                  BRIAN HOYLE   

                                                                                        Justice

Opinion delivered August 15, 2007.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(PUBLISH)

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¹ The respondent is the Honorable Joe Bob Golden, Judge of the 1st Judicial District Court, Sabine County, Texas.

² The Attorney General complains of other defects in Duke’s pleadings and proof. Because we have held that Duke failed to allege extrinsic fraud, we need not address the Attorney General’s remaining arguments.