in Re S.T.

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-15-00014-CV
IN RE S.T.
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ORIGINAL PROCEEDING
TRIAL COURT NO. 233-553020-14
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OPINION
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S.T., relator, filed a petition for writ of mandamus in this court seeking relief
from a trial court order allowing a suit to adjudicate his paternity of a child to
continue in an action joined with a pending divorce and suit affecting parent-child
relationship (SAPCR) between real parties in interest, referred to in this opinion
as Husband and Wife. The primary issue is whether S.T. has a vested right to
rely on the statute of limitations in effect at the child’s birth in February 2002 and
when the child turned four years old, or whether an exception to the statute of
limitations––which the legislature did not codify until after the former four-year
statute of limitations had run––applies. Based on the particular facts and
circumstances of this case, we grant relief.
Background
Husband filed for divorce from Wife in March 2014. In the petition,
Husband denied his paternity of the only child born during the marriage and
alleged that he had been precluded from challenging paternity before the statute
of limitations ran because Wife’s misrepresentations about the child’s conception
resulted in his mistaken belief that he was the child’s father. Husband also
sought genetic testing of the child and named an unknown father as respondent.
Wife countersued for divorce and alleged that Husband’s requested relief was
barred on statute of limitations grounds. 1 See Tex. Fam. Code Ann. § 160.607
(West 2014).
Husband subsequently filed a third party petition against S.T., the man
Husband alleged to be the child’s biological father, 2 seeking money damages in
1
Wife argued,
Petitioner is the presumed father of the twelve year old child subject
of this suit and is time barred from bringing a suit to adjudicate the
paternity of that child. Petitioner has not met the burden required to
maintain said suit outside the limitations period. Because Petitioner
is not entitled to bring said suit, Petitioner cannot be a proper party,
and he is thus not entitled to an order for genetic testing.
2
Husband, who filed the only response to the petition for writ of mandamus,
attached genetic testing results purporting to show that there is no possibility he
is the child’s biological father; however, relator claims these results are not part
of the trial court record. Regardless, a trial court abuses its discretion by
ordering genetic testing if the person seeking the testing is not entitled to
2
“an amount equivalent to what [S.T.’s] child support obligation would have been if
he had been established as the father . . . from the time of . . . birth.” Husband
also filed a motion seeking genetic testing of S.T.
In the meantime, Husband and Wife entered into a rule 11 agreement, in
which they agreed (1) to sever the divorce from the SAPCR, (2) that in the final
decree Husband would “be adjudicated to not be the father [of the child] and to
have no rights and no duties, including the duty of support,” and (3) that if Wife
recovered any child support from S.T., she would reimburse Husband for “1/3 of
any amount recovered . . . if, as, and when received.” S.T. filed an objection to
the rule 11 agreement; he argued that the issues in the divorce and SAPCR were
so intertwined that they could not be severed and that adjudicating Husband to
not be the child’s father in the decree violates public policy. The trial court
suspended operation of the rule 11 agreement.
S.T. filed a third party counterclaim for declaratory judgment, seeking to
have the trial court find that any attempt to adjudicate him as the father of the
child was barred by the four-year statute of limitations in family code section
160.607 and that Husband is the child’s presumed father. Id. §§ 160.102(13),
160.204(a)(1), 160.607 (West 2014). S.T. moved for summary judgment on his
declaratory judgment claim and on Husband’s paternity claims against him. In
maintain a suit to adjudicate paternity, such as when another party is entitled to
rely upon a statute of limitations. See In re Rodriguez, 248 S.W.3d 444, 451–52
(Tex. App.––Dallas 2008, orig. proceeding). Therefore, we will address the
limitations issue without reference to the attachments to Husband’s response.
3
addition to arguing that Husband’s paternity claims were precluded by operation
of the applicable statute of limitations, S.T. also claimed that Husband could not
sue him for back child support owed to the community.
In October 2014, the trial court granted an agreed partial summary
judgment finding that Husband was the child’s presumed father “unless he
successfully rebuts that presumption” and that Husband would take nothing on
his claim for money damages because “there is no cause of action recognized in
Texas by a presumed father to recover retroactive child support against a
biological father or to recover damages based on fraud and conspiracy with
respect to the child’s conception.” But the trial court denied S.T.’s motion for
summary judgment on the limitations issue.
On January 9, 2015, the trial court signed an agreed “Order for Stipulation
of Facts,” stating that “IT IS ADJUDICATED, ORDERED AND DECREED that no
genuine issue exists with respect to the following facts, which are deemed
conclusively proven without need of further evidence for proof thereof, in
connection with the trial of this cause”: (1) Husband is not the father or biological
father of the child; and (2) “[f]acts exist that conclusively establish [Husband’s]
right to the relief of being able to challenge his paternity of [the child], pursuant to
Texas Family Code Section 160.607(b)(2).” Accordingly, the trial court ordered
that in the final decree, “it shall be adjudicated that [Husband] is not the father of
[the child] and that [Husband] shall have no rights and no duties, including the
4
duty of support, regarding [the child] and as such, no provisions for the right[s] or
duties will be included in the final decree.”
Although Husband contended in his response to S.T.’s motion for
summary judgment that the fraudulent concealment exception to the four-year
statute of limitations passed by the legislature in 2011 applied to allow him to
avoid limitations, his response to relator’s petition for writ of mandamus does not
contend that this statutory exception is available to him in avoidance of S.T.’s
statute of limitations defense. Instead, he argues here that the common law
discovery rule applies and that the 2011 amendment merely incorporated that
already-existing common law exception. 3
Applicable Law
When the child was born in February 2002, section 160.607 read as
follows:
(a) Except as otherwise provided by Subsection (b), a
proceeding brought by a presumed father, the mother, or another
individual to adjudicate the parentage of a child having a presumed
father shall be commenced not later than the fourth anniversary of
the date of the birth of the child.
(b) A proceeding seeking to disprove the relationship between
a child and the child’s presumed father may be maintained at any
time if the court determines that:
3
Husband’s argument is that the “2011 amendment to Texas Family Code
160.607(b)(2)[] did not add new law but was merely an embodiment of the
existing common law, which applies the discovery rule in cases of fraud and
breaches of fiduciary duty.”
5
(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 openly treated the child
as his own.
Act of May 25, 2001, 77th Leg., R.S., ch. 821, § 1.01, 2001 Tex. Gen. Laws
1610, 1621–22. In 2003, the legislature amended section (b)(2) to read, “the
presumed father never represented to others that the child was his own.” Act of
May 28, 2003, 78th Leg., R.S., ch. 1248, § 4, 2003 Tex. Gen. Laws 3537, 3538.
The child turned four in February 2006. No party has contended that either of the
exceptions listed in (b)(2) applied then or apply now.
In the 2011 session, the legislature changed sections (b)(1) and (b)(2) of
section 160.607 so that the current version of section 160.607(b) provides as
follows:
(b) A proceeding seeking to adjudicate the parentage of a
child having a 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; or
(2) the presumed father was precluded from
commencing a proceeding to adjudicate the parentage of the
child before the expiration of the time prescribed by
Subsection (a) because of the mistaken belief that he was the
child's biological father based on misrepresentations that led
him to that conclusion.
Act of May 27, 2011, 82nd Leg., R.S., ch. 1221, § 8, 2011 Tex. Sess. Law Serv.
3255, 3257–58 (West) (emphasis added). Husband contends that although the
6
exception in (b)(2) was not in effect when the child was born or when the child
turned four years old, he can nevertheless rely on it to defeat the statute of
limitations in section 160.607(a).
The enacting legislation for the amendment in (b)(2) states that “[t]he
changes in law made by this Act with respect to a proceeding to adjudicate
parentage apply only to a proceeding that is commenced on or after the effective
date of this Act.” Id. § 11(b). But relator contends that to apply the 2011
exception to this case impermissibly impairs his vested right to rely on the
limitations statute as it existed when the child was born. Whether a law
unconstitutionally “impairs vested rights” is decided by whether “it takes away
what should not be taken away.” Robinson v. Crown Cork & Seal Co., 335
S.W.3d 126, 143 (Tex. 2010). In determining whether a statute violates the
prohibition against retroactive laws in article I, section 16 of the Texas
Constitution, courts must consider three factors in light of the prohibition’s dual
objectives: the nature and strength of the public interest served by the statute as
evidenced by the legislature’s factual findings, the nature of the prior right
impaired by the statute, and the extent of the impairment. Id. at 145. The Texas
Supreme Court has held in three cases involving statutes of limitations that had
become vested that to apply an extended or expanded limitations period to allow
the plaintiff’s claim to go forward would be constitutionally impermissible. Baker
Hughes, Inc. v. Keco R. & D., Inc., 12 S.W.3d 1, 5 (Tex. 1999); Wilson v. Work,
62 S.W.2d 490, 490–91 (Tex. 1933) (orig. proceeding); Mellinger v. City of
7
Houston, 3 S.W. 249, 253 (Tex. 1887); see Robinson, 335 S.W.3d at 146 (“This
Court has invalidated statutes as prohibitively retroactive in only three cases, all
involving extensions of statutes of limitations.”); In re K.N.P., 179 S.W.3d 717,
720 n.5 (Tex. App.––Fort Worth 2005, pet. denied).
In Baker Hughes, the legislature had enacted a three-year statute of
limitations for trade secret appropriation claims after the two-year statute had
already passed as to the plaintiff’s claims. 12 S.W.3d. at 3–4. The new statute
of limitations also adopted the application of the discovery rule to trade secret
appropriations claims. Id. at 3. Although the enabling legislation purported to
apply the new statute of limitations to actions pending at the time it was passed
in which the trial had not yet begun, the supreme court held that the defendant,
Baker Hughes, was entitled to rely on the two-year statute of limitations because
it had vested before the new, extended statute of limitations was passed. Id.
The supreme court had also previously determined that the discovery rule did not
apply under the two-year limitations statute. Id. at 4–5; Computer Assocs. Int’l,
Inc. v. Altai, Inc., 918 S.W.2d 453, 458 (Tex. 1996) (op. on reh’g).
Analysis
In his response, Husband does not argue that the 2011 amendment to
section 160.607(b)(2) applies so that he can rely on that statutory exception;
instead, he contends that the 2011 amendment merely codified an already
existing application of the common law discovery rule to this type of case.
Specifically, Husband argues that because spouses have a fiduciary duty to each
8
other––including the duty of full disclosure of facts affecting the marriage––the
common law discovery rule applicable to fraud and breach of fiduciary duty cases
operated in this case to toll the four-year statute of limitations.
According to Husband, “the principle of tolling a statute of limitations in the
case of fraud or breach of fiduciary duty has been part of Texas case law long
before the 2011 amendment of Texas Family Code Section 160.607.” Husband
cites numerous cases exemplifying this principle: Willis v. Maverick, 760 S.W.2d
642, 645 (Tex. 1988); Quinn v. Press, 140 S.W.2d 438, 440 (Tex. 1940);
McClung v. Johnson, 620 S.W.2d 644, 646 (Tex. Civ. App.—Dallas 1981, writ
ref’d n.r.e.); and Smith v. Knight, 598 S.W.2d 720, 721 (Tex. Civ. App.––Fort
Worth 1980), writ ref’d n.r.e., 608 S.W.2d 165 (1980). But a review of those
cases shows that they involved causes of action subject to one of the general
limitations statutes, such as the two-year tort limitations statute. See Tex. Civ.
Prac. & Rem. Code Ann. § 16.003 (West Supp. 2014); see also Little v. Smith,
943 S.W.2d 414, 422 (Tex. 1997) (“In most discovery rule cases, courts are
faced with common-law causes of action and general statutes of limitations. . . .
[W]ithin the confines of the federal and Texas Constitutions, the Legislature is
free to determine that the discovery rule should not apply in certain cases, and it
has done so.”); In re Rodriguez, 248 S.W.3d 444, 452–53 (Tex. App.––Dallas
2008, orig. proceeding) (explaining that establishment of paternity is matter of
9
legislative policy and that party may only rely on exceptions to section 160.607
promulgated by the legislature). 4
The legislature could have chosen to incorporate the discovery rule into
the 2001 and 2003 versions of section 160.607(b), but it did not. See, e.g., Tex.
Bus. & Com. Code Ann. § 17.565 (West 2011) (incorporating discovery rule into
statute of limitations for DTPA cause of action); Underkofler v. Vanasek, 53
S.W.3d 343, 346 (Tex. 2001) (refusing to apply common law tolling rule in DTPA
legal malpractice case when DTPA limitations statute did not incorporate rule as
an exception); S.V. v. R.V., 933 S.W.2d 1, 22 (Tex. 1996) (refusing to apply
discovery rule to statute of limitations in sexual abuse civil suits and noting that
legislature’s newly enacted limitations provisions specific to those types of cases
merely expanded the limitations period rather than specifically incorporating the
discovery rule). We have found no cases applying the discovery rule to a pre-
2011 allegation of fraud by a presumed father regarding the conception of a child
during a marriage, and Husband has not cited one. See In the Interest of J.G.,
4
Moreover, the cases Husband cites regarding the fiduciary duty owed to
one another by spouses apply the discovery rule only to property division issues
in divorce: Solares v. Solares, 232 S.W.3d 873, 876–78 (Tex. App—Dallas
2007, no pet.); Boaz v. Boaz, 221 S.W.3d 126, 128–30 (Tex. App.—Houston [1st
Dist.] 2006, no pet.); In re Marriage of Moore, 890 S.W.2d 821, 825 (Tex. App.—
Amarillo 1994, no writ). But cf. Ditta v. Conte, 298 S.W.3d 187, 191–92 (Tex.
2009) (explaining that there is no statutory limitations provision directed at
divorce actions because of changing nature of trust and confidence between
spouses that can affect fault grounds). Regardless, because this type of action is
governed by a specific statute of limitations and therefore the discovery rule does
not apply, we need not decide the full extent of the fiduciary duty owed by Wife to
Husband in this case.
10
No. 04-97-00950-CV, 1998 WL 904303, at *2 (Tex. App.––San Antonio Dec. 30,
1998, pet. denied) (not designated for publication) (holding that discovery rule did
not apply to statute of limitations in family code section 160.110 and stating that
“[n]o statute applies the discovery rule to a paternity action”). Accordingly, we
conclude and hold that the trial court abused its discretion by determining that
Husband (and by virtue of their agreement, Wife) can rely on the application of
either the common law discovery rule or the 2011 amendment to section
160.607(b) to defeat S.T.’s right to summary judgment on the limitations issue.
Husband argues that by not incorporating the discovery rule into the 2001
and 2003 versions of section 160.607, the legislature abrogated a long-standing
common law right to rely on the common law discovery rule in cases of fraud.
See Cash Am. Int’l Inc. v. Bennett, 35 S.W.3d 12, 16 (Tex. 2000); Satterfield v.
Satterfield, 448 S.W.2d 456, 459 (Tex. 1969); Bruce v. Jim Walters Homes, Inc.,
943 S.W.2d 121, 122–23 (Tex. App.—San Antonio 1997, writ denied). But a
presumed father’s ability to deny paternity is itself a creature of statute; before
former section 12.06 of the family code 5 was enacted in 1983, a presumed father
5
Section 12.06 of the Family Code, added effective September 1, 1983,
provided as follows:
DENIAL OF PATERNITY. (a) In any suit affecting the
parent-child relationship, other than a suit under Chapter 13 of this
code, a man is entitled to deny his paternity of the child who is the
subject of the suit and who was born or conceived during the
marriage of the man and the mother of the child. The question of
paternity under this section must be raised by an express statement
11
who was married and living with his wife when a child was born could not deny
paternity unless he could establish nonaccess to the wife or impotence. In the
Interest of J.W.T., 872 S.W.2d 189, 193 (Tex. 1994) (op. on reh’g); Amanda v.
Montgomery, 877 S.W.2d 482, 486 (Tex. App.––Houston [1st Dist.] 1994, orig.
proceeding). When the child was born, Husband and Wife had no expectation
that the prior statute of limitations would apply because section 160.607 had
already been enacted and taken effect. See K.N.P., 179 S.W.3d at 721.
However, even if the legislature’s enactment of section 160.607 in 2001 had
impermissibly shortened a prior statute of limitations on which they could rely, we
would still have to determine whether they nevertheless brought their suit within a
reasonable time after the prior limitations period on which they could rely expired.
Id. at 722.
denying paternity of the child in the man’s pleadings in the suit,
without regard to whether the man is a petitioner or respondent.
(b) In any suit in which a question of paternity is raised
under this section, the court shall conduct the pretrial proceedings
and order the blood tests as required in a suit under Chapter 13 of
this code.
(c) In any suit in which a question of paternity is raised
under this section, the man who is denying his paternity of the child
has the burden of establishing that he is not the father of the child.
Act of May 30, 1983, 68th Leg., R.S., ch. 424, § 7, 1983 Tex. Gen. Laws 2346,
2355, repealed by Act of April 6, 1995, 74th Leg., R.S., ch. 20, § 2(1), 1995 Tex.
Gen. Laws 113, 282.
12
Rightly or wrongly, the legislature had determined when the child was born
that a four-year statute of limitations applied to a suit to adjudicate paternity and
had not yet endorsed the exception relied upon by Husband in this case. Thus,
S.T.’s right to rely on that limitations period as a defense vested. See, e.g.,
Baker Hughes, 12 S.W.3d at 4. The Corpus Christi court of appeals has
articulated the public policy behind the legislature’s determination as follows:
The purpose of a statute of limitations in cases where a child
has a presumed father is to avoid the severance of the parent-child
relationship between the child and the presumed father—the
psychological father. . . .
....
. . . Section 160.607(a) prevents a mother, a presumed father,
or any other individual, including the biological father, from
destroying the father-child relationship between a presumed father
and the child. The purpose of the Uniform Parentage Act . . . , which
the Texas Legislature adopted in 2001, is to protect the child
involved in parentage issues. . . . A statute of limitations in cases
where the child has a presumed father usually protects a child
because it preserves the established family unit.
In re A.D.M., No. 13-09-00677-CV, 2011 WL 3366381, at *12–13 (Tex. App.––
Corpus Christi Aug. 4, 2011, pets. denied) (mem. op.) (emphasis added)
(citations omitted). Although the legislature has since allowed for an exception in
cases of fraud by misrepresentation, this public policy concern is not frustrated in
a case such as this one, in which there is a long-term relationship between the
child and presumed father, and the relator’s right to rely on the statute of
limitations in effect at the relevant time has long since vested.
13
We conclude and hold that the trial court abused its discretion by denying
S.T.’s motion for summary judgment seeking a declaration that Husband’s suit to
adjudicate paternity was barred by limitations.
S.T. also challenges the trial court’s agreed Order of Stipulations.
According to Husband, S.T. has no standing to challenge the Order of
Stipulations because (1) he is not a party to it, (2) the stipulated facts he
challenges relate only to the relationship between Husband and the child, and (3)
the stipulated facts do not name S.T. as the presumptive father of the child.
Even though the agreed Order of Stipulations does not directly purport to
impose liability on S.T., nor does it adjudicate him the child’s biological father, the
stipulation that “[f]acts exist that conclusively establish [Husband’s] right to the
relief of being able to challenge his paternity of [the child], pursuant to Texas
Family Code Section 160.607(b)(2),” addresses and resolves––contrary to our
holding above––S.T.’s challenge to Husband’s suit on limitations grounds.
Husband and Wife cannot bind S.T., also a party to the underlying proceeding, to
this stipulation, nor can they resolve this issue by stipulation. See Computize,
Inc. v. NHS Commc’ns Group, Inc., 992 S.W.2d 608, 614 (Tex. App.––Texarkana
1999, no pet.); Kenneth H. Hughes Interests, Inc. v. Westrup, 879 S.W.2d 229,
233 (Tex. App.––Houston [1st Dist.] 1994, writ denied) (op. on reh’g) (“Hayman’s
liability, or lack of same, under the indemnity provision is not an issue that could
be properly decided by a stipulation made by parties other than Hayman at a trial
in which Hayman did not participate.”).
14
Moreover, the stipulations that Husband is not the father or biological
father attempt to adjudicate Husband’s nonpaternity by agreement contrary to
section 160.204(b), which provides that a presumption of paternity may be
rebutted in only two ways: (1) by an adjudication under subchapter G of chapter
160 or (2) by the filing of a denial of paternity along with the filing of a valid
acknowledgment of paternity by another person. Tex. Fam. Code Ann.
§ 160.204(b). A suit under subchapter G cannot be maintained without “a man
whose paternity of the child is to be adjudicated” joined as a necessary party. Id.
§ 160.603(2) (West 2014). The statutory scheme regarding the establishment of
parentage thus contemplates that a child will not be left without a means of
support, either by a presumed father or an adjudicated father. Compare Gribble
v. Layton, 389 S.W.3d 882, 890 (Tex. App.––Houston [14th Dist.] 2012, pet.
denied) (holding that family code section 160.606 furthers public policy of
ensuring that child’s parents, rather than taxpayers, support the child), with Tex.
Fam. Code Ann. § 153.001(a)(2) (West 2014) (providing that public policy of
Texas is to provide safe, stable, and nonviolent environment for child), A.D.M.,
2011 WL 3366381, at *12 (holding that public policy behind statute of limitations
in section 160.607 is to protect the child by preserving an existing family unit); cf.
Goodson v. Castellanos, 214 S.W.3d 741, 749 (Tex. App.––Austin 2007, pet.
denied) (“The destruction of a parent-child relationship is a traumatic experience
that can lead to emotional devastation for all the parties involved, and all
reasonable efforts to prevent this outcome must be invoked when there is no
15
indication that the destruction of the existing parent-child relationship is in the
best interest of the child.”). Husband and Wife’s agreements in the Order of
Stipulations in this particular situation, therefore, contravene the statutory
scheme and directly affect S.T.: once Husband is no longer considered a
presumed father without the necessity of an adjudication of paternity as required
by the statute, no statute of limitations applies to a suit by the child or Wife
against S.T. to establish parentage. See Tex. Fam. Code Ann. §160.606 (West
2014); see also In re Ngo, No. 05-13-00382-CV, 2013 WL 3974136, at *1–2
(Tex. App.––Dallas Aug. 2, 2013, orig. proceeding) (mem. op.) (holding trial court
erred by adjudicating parentage of presumed father in divorce decree and
granting mandamus relief in subsequent proceeding to adjudicate parentage of
alleged biological father). Consequently, we also conclude and hold that the trial
court abused its discretion by including the findings regarding Husband’s
nonpaternity in the agreed Order of Stipulations.
Adequacy of Remedy
Because it is interlocutory, a trial court’s denial of summary judgment is
generally not a ground for mandamus relief. In re United Servs. Auto. Ass’n
[USAA], 307 S.W.3d 299, 314 (Tex. 2010) (orig. proceeding). This rule is based
in part on the justification that a party will not be twice subjected to a trial of the
same issues. Id. at 314. However, issues involving the rights of parents and
children should be resolved expeditiously, and delay in such cases often renders
appellate remedies inadequate. In re Tex. Dep’t of Family Protective Servs., 210
16
S.W.3d 609, 613 (Tex. 2006) (orig. proceeding) (op. on reh’g) (involving trial
court’s abuse of discretion in failing to dismiss termination of parental rights trial);
see also USAA, 307 S.W.3d at 314 (holding that mandamus relief was
appropriate to remedy denial of summary judgment when USAA had already
endured one trial and was facing a second trial on claims barred by limitations).
Here, Husband joined the adjudication of paternity action in the underlying
proceeding, and Husband and Wife’s agreement regarding property division
apparently takes the possible future recovery of child support from S.T. into
consideration as part of the property division. Thus, whether Husband’s suit to
adjudicate paternity of S.T. may continue is a factor in Husband’s and Wife’s
negotiations in the divorce proceeding, as evidenced by their rule 11 agreement
and agreed stipulations of fact. Moreover, as we have explained above, allowing
Husband and Wife to continue their divorce and SAPCR on the agreed facts
contained in the Order of Stipulations would vitiate S.T.’s defense upon the
decree’s becoming final, regardless of the status of the adjudication proceeding
against him. We therefore conclude that S.T. does not have an adequate
remedy by appeal. See Rodriguez, 248 S.W.3d at 454 (holding that party has no
adequate remedy by appeal from trial court’s order in contravention of section
160.607 statute of limitations).
Conclusion
For the reasons set forth above, we conditionally grant S.T. the relief he
seeks. We order the trial court to (1) vacate its order denying S.T. summary
17
judgment on his declaratory judgment claim that Husband’s suit to rebut the
presumption of his paternity of the child and to adjudicate S.T.’s paternity of the
child is barred by limitations and (2) render summary judgment for S.T. on his
claims. We also order the trial court to delete the following from the agreed
Order of Stipulations:
4. Petitioner is not the father of [the child].
5. Petitioner is not the biological father of [the child].
6. Facts exist that conclusively establish Petitioner’s right to
the relief of being able to challenge his paternity of [the child],
pursuant to Texas Family Code Section 160.607(b)(2).
Except to the specific relief granted herein, the trial court’s orders stand. A writ of
mandamus will issue only if the trial court fails to comply with this order.
Additionally, this court’s order staying proceedings in the trial court will be
automatically lifted upon the trial court’s compliance with this court’s order as set
forth above.
/s/ Terrie Livingston
TERRIE LIVINGSTON
CHIEF JUSTICE
PANEL: LIVINGSTON, C.J.; DAUPHINOT and GABRIEL, JJ.
DELIVERED: June 12, 2015
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