Noe Garza and Noe Garza Engineers, Inc. v. Joe Carmona and Celina Carmona

NUMBER 13-11-00006-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
IN RE: OFFICE OF THE ATTORNEY GENERAL OF TEXAS
On Petition for Writ of Mandamus.
MEMORANDUM OPINION
Before Justices Garza, Benavides, and Vela
Memorandum Opinion by Justice Benavides1
Relator, Office of the Attorney General of Texas (“OAG”), filed a petition for writ of
mandamus through which it seeks to compel the trial court2 to vacate its order requiring
genetic testing in a divorce proceeding. As stated herein, we conditionally grant the
1
See TEX. R. APP. P. 52.8(d) (“When granting relief, the court must hand down an opinion as in any
other case.”); TEX. R. APP. P. 47.4 (distinguishing opinions and memorandum opinions).
2
The respondent in this original proceeding is the Honorable Arnold Cantu, Jr., Presiding Judge of
the County Court at Law Number Five of Hidalgo, County, Texas. See TEX. R. APP. P. 52.2.
petition for writ of mandamus.
I. BACKGROUND
Edgar Zamora and Veronica Tostado were married on May 9, 2005. They had
two children who were born during the marriage: B.I.Z. was born on September 14,
2005, and M.S.Z. was born on October 11, 2006. The couple subsequently separated.
In 2007, the OAG obtained an agreed child support review order requiring Zamora to pay
monthly child support and granting Tostado retroactive child support. In 2008, the OAG
obtained another agreed child support review order which discontinued the previously
ordered child support because the couple had reconciled, but which granted a child
support arrearage judgment against Zamora.
In 2009, Zamora filed for divorce. Shortly thereafter, the OAG obtained a third
agreed child support review order reinstating Zamora’s child support obligations and
granting another cumulative arrearage judgment against him. In each of the agreed
child support orders and in Zamora’s pleadings in the divorce proceeding, Zamora is
referred to as the father of the children.
In the divorce proceeding, on November 16, 2010, Zamora filed a “Motion for
Blood Test to Rescind Acknowledgment of Paternity Pursuant to Section 160.308 of the
Texas Family Code.” See TEX. FAM. CODE ANN. § 160.308 (Vernon 2008). According
to the motion, Tostado “has been making remarks to [Zamora] that he is not the father of
the children.” The OAG, who had intervened in the divorce proceeding, contested the
motion on grounds that, inter alia, Zamora had been adjudicated the father of the
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children based on the agreed orders and the admissions in Zamora’s pleadings, and the
statute of limitations barred a request for genetic testing. After a hearing on Zamora’s
motion, the trial court ordered Zamora, Tostado, and the two children to undergo genetic
testing.
On January 7, 2010, the OAG filed this original proceeding and a motion for
emergency temporary stay of the order for genetic testing. That same day, this Court
granted the motion for emergency relief and stayed the trial court’s “Order to Submit to
Blood Tests.” The Court further requested that the real party in interest, Zamora, file a
response to the OAG’s petition for writ of mandamus. Zamora’s response to the
petition was due on or before January 18, 2011, but no such response has been filed to
date.
II. MANDAMUS
Mandamus is an extraordinary remedy that issues only if the trial court clearly
abused its discretion and the relator has no adequate remedy by appeal. In re Sw. Bell
Tel. Co., 235 S.W.3d 619, 623 (Tex. 2007) (orig. proceeding). The heavy burden of
establishing an abuse of discretion and an inadequate appellate remedy is on the party
resisting discovery. In re CSX Corp., 124 S.W.3d 149, 151 (Tex. 2003) (orig.
proceeding). A trial court commits a clear abuse of discretion when its action is “so
arbitrary and unreasonable as to amount to a clear and prejudicial error of law.” Id.
(quoting CSR Ltd. v. Link, 925 S.W.2d 591, 596 (Tex. 1996)). It is the relator’s burden
to provide this Court with a sufficient record to establish the right to mandamus relief.
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Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992); In re Pilgrim’s Pride Corp., 187
S.W.3d 197, 198-99 (Tex. App.–Texarkana 2006, orig. proceeding); see TEX. R. APP. P.
52.3.
An order requiring genetic testing may under certain circumstances be subject to
review by mandamus. See Office of Att’y Gen., 276 S.W.3d 611, 621 (Tex.
App.–Houston [1st Dist.] 2008, orig. proceeding) (collecting cases). First, an order
requiring genetic testing is a discovery order, which, if erroneously issued, may not be
cured on appeal. See In re Att’y Gen. of Tex., 195 S.W.3d 264, 270 (Tex. App.–San
Antonio 2006, orig. proceeding). Second, genetic testing results are highly sensitive
and personal in nature, and the burden of testing may outweigh any possible benefit and,
instead, cause irreparable harm. See id.; e.g., In re Rodriguez, 248 S.W.3d 444, 454
(Tex. App.–Dallas 2008, orig. proceeding).
III. ANALYSIS
As stated previously, in the instant case, Zamora sought genetic testing under the
auspices of section 160.308 of the Texas Family Code. Sections 160.307 and 160.308
govern proceedings for the rescission of acknowledgments or denials of paternity under
subchapter D of the Uniform Parentage Act. See TEX. FAM. CODE ANN. §§ 160.307,
160.308 (Vernon 2008). Section 160.308, upon which Zamora relies, extends the
period of time within which rescission may be sought “only on the basis of fraud, duress,
or material mistake of fact.” See id. § 160.308(a). Based on the record before us, this
section is inapplicable to the case at hand, which does not concern an acknowledgment
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of paternity under subchapter D of the Uniform Parentage Act. See In re Rodriguez,
248 S.W.3d 444, 451-53 (Tex. App.–Dallas 2008, orig. proceeding). Moreover, even if
this section were to apply, and we were to construe the agreed orders and statements by
Zamora that he is the children’s father as an official acknowledgment of paternity under
the code, Zamora is not entitled to genetic testing because he has not first made a
successful challenge to the acknowledgment of paternity. See In re Att’y Gen. of Tex.,
195 S.W.3d at 269 (“A trial court abuses its discretion when a child’s paternity has been
legally established and it orders genetic testing before such parentage determination has
been set aside”); see also Amanda v. Montgomery, 877 S.W.2d 482, 487 (Tex.
App.–Houston [1st Dist.] 1994, orig. proceeding). More saliently, however, and as
further discussed herein, Zamora’s request for genetic testing is barred by the applicable
statute of limitations.
There is a presumption of paternity where a man is married to the mother of the
child and the child is born during the marriage. See TEX. FAM. CODE ANN. § 160.204(a)
(Vernon 2008). This presumption legally establishes the father-child relationship
between the man and child. See id. § 160.201(b)(1) (Vernon 2008). A “presumed
father” is, by operation of law under section 160.204, “recognized as the father of the
child until that status is rebutted or confirmed in a judicial proceeding.” Id. §
160.102(13) (Vernon 2008); In re S.C.L., 175 S.W.3d 555, 557 (Tex. App.–Dallas 2005,
no pet.). The presumption of paternity may be rebutted only by: (1) a proceeding to
adjudicate parentage under Subchapter G, or (2) the filing of a valid denial of paternity by
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the presumed father in conjunction with the filing by another person of a valid
acknowledgment of paternity. See TEX. FAM. CODE ANN. § 160.204(b) (Vernon 2008); In
re S.C.L., 175 S.W.3d at 557.
When a child has a presumed father, a proceeding to adjudicate parentage must
be commenced “not later than the fourth anniversary of the date of the birth of the child.”
TEX. FAM. CODE ANN. § 160.607(a). However, a proceeding seeking to disprove the
father-child relationship between a child and the child’s presumed father may be
maintained at any time if the court determines that: (1) the presumed father and the
mother of the child did not live together or engage in sexual intercourse with each other
during the probable time of conception; and (2) the presumed father never represented
to others that the child was his own. See id. § 160.607(b). The party seeking to avoid
the four year period of limitations bears the burden of proving a provision that would toll
the statute of limitations. See In re Rodriguez, 248 S.W.3d at 451; In re S.C.L., 175
S.W.3d at 558 n.1.
The Texas Family Code provides that, except as otherwise provided by the
subchapters regarding genetic testing and proceedings to adjudicate parentage, “a court
shall order a child and other designated individuals to submit to genetic testing if the
request is made by a party to a proceeding to determine parentage.” Id. § 160.502(a).
“Therefore, a party must be entitled to maintain a proceeding to adjudicate parentage as
set out in Subchapter G before a trial court can order genetic testing to determine
parentage.” In re Rodriguez, 248 S.W.3d at 450-51; see Amanda, 877 S.W.2d at
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486-87 (granting mandamus relief from an order for genetic testing requested by a
presumed father who had failed to make a prima facie showing that his bill of review
challenging paternity was not barred as a matter of law):
Since the limitation on proceedings to adjudicate parentage for a child with
a presumed father is contained in Subchapter G “Proceeding to Adjudicate
Parentage,” a court cannot order genetic testing if the proceeding to
adjudicate parentage is barred as a matter of law by the four-year
limitations period and the party requesting the testing produces no
evidence of the exception found in section 160.607(b).
In re Rodriguez, 248 S.W.3d at 451.
The children subject to the trial court’s order requiring genetic testing were born
during Zamora and Tostada’s marriage. Therefore, under the family code, Zamora is
their presumed father. See TEX. FAM. CODE ANN. § 160.204(a). His status as their
presumed father has not been rebutted or confirmed in a judicial proceeding. See TEX.
FAM. CODE ANN. § 160.102(13). Any proceeding to adjudicate parentage in this case is
subject to the four-year time limitation set forth in section 160.607 of the Texas Family
Code. See id. § 160.607(a). Zamora did not initiate a proceeding to adjudicate
parentage within the applicable limitations period for either child, nor did he request
blood testing within that same period. Further, Zamora has not presented evidence of
an exception to the four year statute of limitations. We conclude, on this record and
based on the arguments and authorities provided to the Court, that the trial court abused
its discretion in ordering genetic testing. See In re Rodriguez, 248 S.W.3d at 453.
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IV. CONCLUSION
The Court, having examined and fully considered the petition for writ of
mandamus, is of the opinion that relator has shown itself entitled to the relief sought.
Accordingly, we lift our stay order of January 7, 2011, and conditionally grant relator’s
petition for writ of mandamus. We are confident that the trial court will vacate its order
requiring genetic testing. The writ will issue only if the trial court fails to comply with this
opinion.
________________________
GINA M. BENAVIDES,
Justice
Delivered and filed the
15th day of February, 2011.
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