B--- M--- N---, In Interest of, 8590

• Decision Date: 22 August 1978
• Docket Number: No. 8590,8590
• Citation: 570 S.W.2d 493
• Parties: In the Interest of B______ M______ then______, a child.
• Court: Texas Court of Appeals

Page 493

570 S.W.2d 493

In the Interest of B______ M______ then______, a child.

No. 8590.

Court of Civil Appeals of Texas, Texarkana.

Aug. 22, 1978.

Harlan A. Martin, Martin & Martin, Dallas, for appellant.

Jack Napier, Dallas, for appellee.

RAY, Justice.

This is a paternity suit. The natural mother, petitioner, filed suit seeking to establish that a parent-child relationship exists between her minor son, b ______ m______ n$6d_____, and the alleged father, respondent. petitioner pursued the statutory method of having the respondent declared the biological father of her minor son under Sections 13.02, et seq., (Supp.1978), of the Texas Family Code. Further, petitioner sought to have respondent pay child support for the minor child under Section 13.42 (Supp.1978). ¹ The trial court ordered that blood tests be taken on the mother, child and alleged father. At the end of the pretrial proceedings, the court determined from the blood test evidence that the alleged father was not in fact the father of the child and dismissed the suit with prejudice in accordance with Section 13.05(a). Appellant has perfected her appeal from the dismissal of the suit and presents one point of error for our consideration.

THE ISSUE

Appellant submits that the following is the question to be resolved:

"Petitioner's sole contention is that the mandate under § 13.05(a) of the Texas Family Code requiring the dismissal with prejudice of Petitioner's cause of action seeking to establish the paternity of her illegitimate child is unconstitutional in that the threshold determination wholly predicated upon the results of blood tests showing that the Respondent is not the natural father of Petitioner's illegitimate child is a procedure violative of due process as required by Article 1, § 13 of the Constitution of the State of Texas."

THE FACTS

b______m______n______, a male child, was born out of wedlock on the 28th day of

September 1976, in Harris County. On February 29, 1977, appellant sued respondent, alleging the respondent to be the natural father of the minor child. On April 25, 1977, the trial court ordered all parties to submit to blood tests to be conducted by the Southwestern Institute of Forensic Sciences of Dallas. Thereafter, a serologist employed by the Southwestern Institute of Forensic Sciences conducted the court ordered blood tests on the mother, child and alleged father. On May 10, 1977, the serologist furnished the trial court her report detailing the results of all blood tests, and stated that her analysis of the blood tests excluded the possibility that respondent was the natural father of the minor child. On June 2, 1977, petitioner requested the trial court to proceed under Section 13.04 and order a pretrial conference for the purpose of determining the results of the previously ordered blood tests. The pretrial conference was held on August 10, 1977, and at the conclusion of the hearing the court ordered the case dismissed because the court was of the opinion that the blood tests showed by clear and convincing evidence that respondent was excluded as being the natural father of the child.

RESOLUTION OF THE ISSUE

The posture in which this case is presented to this court is unique and presents a case of first impression. Appellant does not present questions of due process or equal protection of the law under the fourteenth amendment to the U.S. Constitution though some discussion of the due process clause and equal protection clause will be alluded to in this opinion.

Article 1, § 3 of the Texas Constitution provides the following:

"All free men, when they form a social compact, have Equal rights, and no man, or set of men, is entitled to exclusive separate public emoluments, or privileges, but in consideration of public services." (Emphasis added.)

Article 1, § 13 of the Texas Constitution provides in pertinent part the following:

". . . All courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law."

Article 1, § 19 of the Texas Constitution provides the following:

"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."

The fourteenth amendment to the U.S. Constitution provides in pertinent part the following:

". . . No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

Chapter 13 of the Texas Family Code is styled "DETERMINATION OF PATERNITY." Subchapter A relates to paternity suits and the procedure to be followed. Section 13.02 provides that in a paternity suit the court shall order the mother, alleged father and child to submit to blood tests. Section 13.03 provides that the court may appoint two or more experts qualified as examiners of blood types to make the blood tests and any party may employ other qualified examiners of blood tests if they so desire. Section 13.04 provides that after the completion of the blood tests, the court shall hold a pretrial conference at which the examiners shall be called to testify. The court and the parties may examine and cross-examine all witnesses.

Section 13.05 provides the following:

"Pretrial Proceedings: Effect of Blood Tests.

"(a) At the conclusion of the pretrial conference, if the court finds that the tests show by clear and convincing "(b) If the court finds that the blood tests fail to show by clear and convincing evidence the alleged father is not the father of the child, the court shall set the suit for trial."

evidence that the alleged father is not the father of the child, the court shall dismiss the suit with prejudice.

Article 1, § 13 of the Texas Constitution is based largely upon Chapter 40 of the Magna Charta, which provides, "To none will we sell, to none deny, or delay, right or justice." Article 1, § 13, supra, does not create any new right but is merely a declaration of a general fundamental principle and means that for such wrongs as are recognized by the law of the land, the courts shall be open and afford a remedy. Article 1, § 3 of the Texas Constitution is the Texas equivalent of the Equal protection clause of the fourteenth amendment to the U.S. Constitution as distinguished from the "due process" clause.

In Home of the Holy Infancy v. Kaska, 397 S.W.2d 208 (Tex.1965), the Texas Supreme Court had under consideration the legitimacy of a child. There it was certain that the plaintiff was the biological father of the child in question. The father and the mother were ceremonially married after the child was conceived and the child was born after the mother had the marriage annulled. The court held that the marriage though voidable, nevertheless legitimated the child under the then existing provisions of Tex.Rev.Civ.Stat. art. 4639 (1925) (repealed; Tex.Law 1973, ch. 543, § 3 at 1458) and Tex.Probate Code § 42 (1956). However, the court in discussing the entire problem of support stated at page 210 that a father was not under a common law or statutory duty to support his illegitimate child. Subsequently, the U.S. Supreme Court in Gomez v. Perez, 409 U.S. 535, 93 S.Ct. 872, 35 L.Ed.2d 56 (1973), concluded that the Texas common law rule that illegitimate children had no legal right to support from their fathers was unconstitutional because it violated the Equal protection clause of the fourteenth amendment of the U.S. Constitution. In Gomez, supra, the mother of an illegitimate child brought an action against the asserted biological father of the child to have him declared to be the father and to require him to support the child. The finding that the alleged father was the true father was not questioned on appeal. Later, In Interest of R______ V______M______, A Child, 530 S.W.2d 921 (Tex.Civ.App. Waco 1975, no writ), the Waco Court of Civil Appeals had before it an almost identical case to that of Gomez. In both Gomez and r______v______m______, actions were brought to declare the alleged father to be the biological father of the child and to require him to support the child. In both actions, no question was raised on appeal concerning the finding that the defendant was the father. The support action was defended on the ground that there was no statutory or common law basis for requiring a father to support his illegitimate child. The Waco Court of Civil Appeals followed the Gomez decision and held that an illegitimate child was entitled to support from its biological father. Both cases were decided on the basis of the equal protection clause of the fourteenth amendment. Suit was filed in r______v______m______ on june 25, 1974, and judgment rendered by the trial court on May 23, 1975. Chapter 13 of the Texas Family Code became effective September 1, 1975. (Acts 1975, 64th Leg., p. 1261, ch. 476, § 24).

With this background in mind, appellant asserts for the first time on appeal, that Texas has a common law remedy for establishing paternity and cites Gomez as authority. The question of whether or not there exists a common law right to establish paternity was neither raised nor decided in Gomez or R______ V______ M______. That same question was not raised by the pleadings or otherwise in the trial court in this case. The present case was filed subsequent to the adoption and effective date of Chapter 13 of the Texas Family Code. We need not decide whether a common law action existed prior to the adoption of Sections 13.02, et seq., because that question is not presented to us for determination. In the instant case, the procedures outlined by Section 13.02, et seq., were sought by petitioner and ordered followed by the trial court. The mother, child, and alleged father all submitted to...