J.W.T., In Interest of

• Decision Date: 02 February 1994
• Docket Number: No. D-1742,D-1742
• Citation: 872 S.W.2d 189
• Parties: IN the INTEREST of J.W.T., a Minor Child.
• Court: Texas Supreme Court

Page 189

872 S.W.2d 189

IN the INTEREST of J.W.T., a Minor Child.

No. D-1742.

Supreme Court of Texas.

Feb. 2, 1994. ^*

Concurring Opinion by Justice Hecht Feb. 2, 1994.

Dissenting Opinion by Justice Enoch June 30, 1993.

Dissenting Opinion on Motion for Rehearing by Justice Cornyn March 30, 1994.

A.W. Davis, Jr., Newton, for petitioner.

Tom Oxford, Beaumont, for respondent.

DOGGETT, Justice, delivered the opinion of the Court, in which PHILLIPS, ¹ Chief Justice, and GONZALEZ, HIGHTOWER, GAMMAGE, and SPECTOR, Justices, join.

The opinion of June 30, 1993 is withdrawn and the following is substituted. In this case we consider whether, under the Texas due course of law guarantee, a biological father may be denied an opportunity to establish his paternity and claim parental rights.

While living together in 1988, Larry G. and Judy T. conceived a child later named J.W.T. Though still married to Randy T., Judy had planned to marry Larry after resolution of her pending divorce. Judy and Larry together arranged for prenatal care with a local clinic in a contract acknowledging Larry's paternity. Pursuant to that agreement Larry made several payments for obstetric treatment.

Judy and Randy later reconciled and dismissed their divorce action. Before the child's birth, Larry brought an action under the Texas Family Code alleging that he was the father of J.W.T., acknowledging responsibility for child support payments, and requesting a judicial declaration of paternity and recognition of his visitation rights. After the birth, Larry unsuccessfully attempted to maintain contact with J.W.T. Under court order, the parties submitted to scientific paternity testing, which showed a 99.41% probability that Larry was J.W.T.'s biological father.

Accepting the contention of Randy and Judy that Larry lacked standing under the Texas Family Code to bring any action relating to J.W.T., the trial court rejected Larry's assertion of constitutional rights and dismissed his claim. The court of appeals reversed, determining that Section 11.03(a)(7) of the Texas Family Code, under which Larry was denied standing to sue, violated the due course of law guarantee contained in article I, section 19 of the Texas Constitution. 815 S.W.2d 863. We affirm the judgment of the court of appeals.

I.

Critical to this appeal is an understanding of the various provisions of the Texas Family Code that affect a putative father's ability to establish parental rights. If, when a child is born, the mother is married to someone other than the biological father, her husband is "presumed" to be the child's actual father, and this "marital presumption" may not be attacked by any party outside the marriage except a government entity. See TEX.FAM.CODE §§ 12.02(a), 12.06(a) (Vernon Supp.1994); In re M.R.M., 807 S.W.2d 779, 782 (Tex.App.--Houston [14th Dist.] 1991, writ denied).

Several provisions of the Code operate in tandem to prevent a man claiming to be a child's biological father from suing either to rebut the marital presumption or to claim parental rights by establishing his paternity. A biological father has standing to sue under the Family Code only if the child he claims has no presumed father, TEX.FAM.CODE § 11.03(a)(7); ² and the only type of action he may bring is a paternity suit under Chapter 13, which is limited to children who have no presumed father. Id.; TEX.FAM.CODE § 13.21(a). ³ The marital presumption is irrebuttable in a Chapter 13 suit and, even under Chapter 12, only the husband or wife may deny the husband's paternity of a child born during their marriage. TEX.FAM.CODE § 12.06(a). ⁴

Thus, a biological father of a child with a presumed father is given the opportunity for a hearing before a court to establish parental rights only at the request of another party; he may not himself initiate such proceedings. With Randy's paternity of J.W.T. denied by neither Judy nor himself, Randy remains the legally recognized, "presumed" biological father. Under the provisions of the Family Code, Larry is completely barred from asserting his paternity and claiming any relationship with his apparent natural son, J.W.T.

II.

Relying on both his biological connection with and actions to accept responsibility for J.W.T., Larry contends that the Family Code's denial of his parental rights violates the command of Article I, section 19 of the Texas Constitution that No citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land.

Under this provision, Larry seeks an opportunity to prove paternity ⁵ and to obtain a judicial declaration entitling him to both the rights and the obligations of a "parent." As a "parent," Larry could be appointed a managing or possessory conservator of J.W.T., unless shown not to be in J.W.T.'s best interest. See TEX.FAM.CODE §§ 14.01, 14.03. If appointed, Larry would be invested with all of the parental rights recognized by the Family Code, except those that the trial court orders are to be exercised exclusively by Judy, including direction of the child's moral and religious training, management of his estate, access to his services and earnings, right to consent to his marriage or participation in the military, and representation of the child in any legal action. Id. §§ 12.04, 14.04, 14.02.

A declaration of paternity would also impose parental duties, including that of financial support and provision for the child of clothing, food, shelter, medical care, and education, as well as contribution to the mother's pre- and post-natal health care expenses. Id. § 13.42, 12.04. These duties may be forced upon Larry regardless of whether he attempts to exercise any concurrent rights of parenthood ⁶--a paternity suit may be brought at any time by a number of other interested parties whose standing to sue does not depend on the absence of a presumed father. See, e.g., In re S.C.V., 750 S.W.2d 762 (Tex.1988) (mother's suit to enforce child support against biological father of child born during her marriage to another man).

Of all the parties granted standing under the Code, only an alleged biological father's standing depends on the absence of a presumed father. See TEX.FAM.CODE § 11.03(a); 13.01. The State, for example, has standing to enforce parental obligations against the biological father of a child born with a presumed father; it can disestablish the presumed father's paternity, introduce evidence to rebut the marital presumption, and institute a Chapter 13 paternity suit against the biological father. Id. § 12.06; see Attorney General of Texas v. Lavan, 833 S.W.2d 952 (Tex.1992). In short, Larry asks why he cannot assume for himself a responsibility that can be imposed on him by the State, his child, or that child's mother.

III.

Acceptance of Larry's argument that the due course of law provision guarantees him an opportunity to prove paternity would have been highly improbable at the time of the ratification of our Texas Constitution in 1876. A paternity suit was not permitted in Texas at common law. ⁷ Under English common law, an onerous burden of overcoming the marital presumption was designed to protect a child from the harsh consequences of a finding of illegitimacy, which included an inability to obtain support from the father or to inherit from either parent. ⁸ A child could not be delegitimized by proof of the spouses' lack of access to one another if the husband was present "within the four seas" surrounding England at the time of conception, unless his impotence or sterility was proven. ⁹ An evidentiary rule known as Lord Mansfield's Rule, first articulated in 1777, ¹⁰ further prohibited either the husband or the wife from testifying about lack of access, thus requiring evidence or testimony from sources outside the marriage, which were more difficult to secure. Although widely criticized by legal scholars, ¹¹ this rule was generally embraced by the courts, and then gradually rejected in the twentieth century as the legal disabilities associated with illegitimacy diminished. ¹² See Kisthardt, supra note 8.

These conventions were recognized in Lane v. Phillips, 69 Tex. 240, 6 S.W. 610, 611 (1887), in which this court observed with regard to the offspring of an unmarried man and woman who had lived together for twelve years:

while they are his children in fact, the rules of the common law refuse to recognize them as his children, to impose upon him the duties and obligations which the lawful father cannot avoid, or to confer upon them the right to support and and parental care which the child begotten in wedlock has.

Though conceding that "[t]he harshness of this rule ha[d] long been felt," the court went so far as to question the constitutionality of any statute "which [would] compel the father of an illegitimate child to support it or to contribute to its support." Id. Such an enactment

would most probably be held contrary to such constitutional provisions as provide for equality in public burdens, or would be held to be the exercise of an arbitrary power inconsistent with that relation between the state and the subject which all governments not thoroughly despotic recognize.... [T]he common law, for reasons of public policy, refused to enforce [a father's duty to support his illegitimate offspring]; it would be difficult to justify a law enforcing or imposing a personal obligation upon the sole ground that its enforcement would compel the performance of a merely moral duty.

Id. ¹³ Having "recogniz[ed] his natural and moral obligation" of support, the father, together with the children and their mother, were nevertheless held to have "constituted such a family as entitled to the homestead exemption." Id. at 612.

Despite the harsh rules governing the legal relationship between illegitimate children and fathers, the court nonetheless conferred a right upon a father who assumed the obligations of...