L.G. v. F.O.P.

KLINGEMAN, Justice.

This is an appeal from a judgment declaring appellee to be the father of ZG-, a minor child born out of wedlock, but decreeing that there is no civil liability on the part of appellee to support such child.

The only testimony in the record was by the mother of such child, who testified that she was unmarried when she met appellee at a party and had subsequently dated him; that as a result of this dating, a child had been born; that there is no doubt in her mind that appellee is the father of the child; that appellee is a married man, but that at the time of such dating, she did not know this. Appellee had legal representation in the early proceedings, and an answer was filed on his behalf, consisting of a general denial, and a plea in abatement asserting that no cause of action exists either by statutory or common law in Texas for the support of a minor child born out of wedlock.¹ Appellee’s attorney was given leave to withdraw as counsel prior to the trial of said cause, and appellee did not appear in said trial, either personally or by attorney.

Appellant asserts that such judgment denying such child the support of her father constitutes a denial of equal protection of law under the Fourteenth Amendment of the United States Constitution, and Article 1, Section 3 of the Texas Constitution, Vernon’s Ann.St., and is an unconstitutional discrimination contrary to law.

At common law, the father is under no legal obligation for the support and maintenance of his illegitimate children. Lane v. Philips, 69 Tex. 240, 6 S.W. 610 (1887); Beaver v. State, 96 Tex.Cr.R. 179, 256 S.W. 929 (1923); 10 Am.Jur.2d Bastards § 68; 10 C.J.S. Bastards § 18, page 86. The majority of the courts in this country have held that without legislation on the subject, the father of an illegitimate child cannot be required to provide for its support. 30 A.L.R. Anno. — Illegitimate—Duty to Support 1069; 10 Am.Jur.2d § 68, supra; 10 C.J.S. § 18, supra.

At the present time there is no Texas statute imposing on the father the duty to support and maintain an illegitimate child. We do not consider it the purpose of this opinion to debate the various sociological reasons for or against such legislation. Sufficient to say, the Family Law Section of the State Bar of Texas has recommended such legislation to both the 61st and 62nd Legislatures of the State of Texas. At the present time all but two states have such legislation. It must be recognized, however, that a dominant feature of any type of legitimation statutes is the provision for proper standards and safeguards for determining the paternity of an illegitimate child.

The Texas Courts have uniformly held that a father is not under a common law or statutory duty to support his illegitimate child. See Lane v. Philips, supra; Beaver v. State, supra; 8 Tex.Jur.2d Bastardy § 13. The Supreme Court in Home of Holy Infancy v. Kaska, 397 S.W.2d 208 (Tex.1965), has recently reconsidered at length the rights and standing of the father of an illegitimate child. It was there said: “There are no similar statutes [legitimation] in Texas, and here a father is not under a common law or statutory duty to support his illegitimate child.” In the face of this positive holding by our Supreme Court, the cases from other jurisdiction have little, if any, application. However, such holdings must be considered in the light of whether or not such jurisdiction has enacted some type of legitimation statute.

The trial court properly held that there was no cause of action in this State to impose civil liability on the part of appellee to support such illegitimate child. The judgment of the trial court is affirmed.

1 . Establishment of paternity is a prerequisite to allowing the court to establish a relationship between the child and the father upon which the illegitimate child could base his claim to support. The Texas Constitution and the Texas Statutes nowhere provide for a “bastardy proceeding” to establish the paternity of the father. An act patterned after the Uniform Act on Legitimacy was submitted to the 61st Legislature in 1969; however, such proposed act did not become law. Such act would have established procedures for determination of paternity and provided for support of an illegitimate child. See Senate Bill No. 281; University of Texas: Krause, Proposed Uniform Act on Legitimacy, 44 Tex.L.Rev. 829 (1966) ; Mullin, Constitutional Law, 1 St. Mary’s Law Journal 146, 149-150 (1969).