Gibson v. J.W.T., 09-90-245

• Citation: 815 S.W.2d 863
• Decision Date: 29 August 1991
• Docket Number: No. 09-90-245,09-90-245
• Parties: Larry GIBSON, Appellant, v. In the Interest of J.W.T., a Minor Child, Appellee. CV.
• Court: Texas Court of Appeals

Page 863

815 S.W.2d 863

Larry GIBSON, Appellant, v. In the Interest of J.W.T., a Minor Child, Appellee.

No. 09-90-245 CV.

Court of Appeals of Texas Beaumont.

Aug. 29, 1991.

Rehearing Denied Oct. 2, 1991.

Tom Oxford, East Texas Legal Services, Beaumont, for appellant.

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

Before WALKER, C.J., and BROOKSHIRE and BURGESS, JJ.

OPINION

WALKER, Chief Justice.

This is an appeal by appellant, Larry Gibson, from the trial court's order sustaining appellees' Plea in Abatement and dismissing appellant's lawsuit. Appellees are R.T. and J.T. The child, J.W.T., was born to J.T. on March 28, 1989. Appellant, having credible reason to believe himself to be the biological father of J.W.T., filed a petition affecting the parent-child relationship seeking to establish his paternity and seeking access to J.W.T. The original petition was filed prior to J.W.T.'s birth, but a subsequently amended petition was filed by appellant on April 11, 1989. During this entire sequence of events, the biological mother, J.T., was married to R.T. J.T., upon separation from R.T., chose to live with appellant from the first part of June 1988 through October 1988. Appellant testified at the Motion for New Trial hearing that he and J.T. were engaged to be married during this time in 1988. Divorce proceedings were pending between the T.s during this period. Appellant believes that J.W.T. was conceived during this period from June through October 1988, and that appellant is the biological father.

At some point prior to the birth of J.W.T., the T.s reconciled and J.T. and R.T. began living together again as husband and wife. In response to the allegations in appellant's petitions, appellees filed a pro se response on April 3, 1989 stating that R.T. was the father of J.W.T. and denying that J.T. and R.T. were separated at the time of J.W.T.'s conception. A formal general denial was filed on April 21, 1989 by appellees' counsel. Thereafter, the trial court ordered the parties to submit to blood tests as part of the standard procedure outlined in Chapter 13 of the Texas Family Code for determinations of paternity. The record before us further reflects the contents of a deposition taken from Robert C. Giles, the scientific director of GeneScreen, Inc. in Dallas, Texas. Mr. Giles scientifically analyzed the blood taken from the parties by DNA analysis. Mr. Giles' opinion, based upon reasonable scientific certainty, was that the appellant was the father of J.W.T. Mr. Giles testified that based upon the DNA tests, the probability that appellant was the biological father of J.W.T. was 99.41%. Appellees offered no scientific evidence to the contrary.

The record before us also reveals a transcript of sworn testimony given by appellee, R.T., on October 6, 1988 in the Fourteenth Judicial District Court of Calcasieu Parish, Louisiana. R.T. testified to, among other things, the fact that as of October 6, 1988 he (R.T.) and J.T. were not living together; that his (R.T.'s) suspicions of J.T. being "intimate" with appellant were confirmed at some point by a phone conversation with J.T.; and then this testimony was elicited from R.T.:

Q. Mr. [R.T.] T., is your wife pregnant at this time?

A. Yes, she is.

Q. Are you capable of fathering a child?

A. I've had a vasectomy.

Q. When did you have the vasectomy?

A. Right after our last child was born, in '78.

Q. Approximately 10 years ago?

A. Right.

Despite the evidence referred to above, the trial court sustained appellees' plea in abatement upon the grounds that appellant has no standing to bring suit as he did because the child, J.W.T., has a presumed father (R.T.), and that the presumed father did not initiate the lawsuit, and that appellant does not fall within any of the definitions or classes of parties enumerated in TEX.FAM.CODE ANN. § 11.03 (Vernon 1986 & Vernon Supp.1991) as being entitled to bring an original suit affecting the parent-child relationship.

Appellant presents us with three points of error, those being:

Point of Error 1. Denying the biological father of a child the right to establish paternity and obtain access to that child because the child's mother is married to someone else at the time of the child's conception and birth violates Article 1 Section 3a of the Texas Constitution by denying Appellant equality under the law because of his sex.

Point of Error 2. Denying the biological father of a child the right to establish paternity and access to that child because the child's mother is married to someone else at the time of the child's conception and birth violates Article 1 Section 13 of the Texas Constitution by denying Appellant open access to the Court and a remedy by due course of law for the injury done to him.

Point of Error 3. Denying the biological father of a child the right to establish paternity and access to that child because the child's mother is married to someone else at the time of the child's conception and birth violates Article 1 Section 19 of the Texas Constitution by depriving Appellant liberty or privileges without due course of the law of the land.

In the interest of clarity, we will set out the statutory and constitutional provisions for discussion in this opinion. TEX.CONST. art. I, § 3a states, "Equality under the law shall not be denied or abridged because of sex, race, color, creed, or national origin. This amendment is self-operative." TEX.CONST. art. I, § 13 states, "Excessive bail shall not be required, nor excessive fines imposed, nor cruel or unusual punishment inflicted. 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." TEX.CONST. art. I, § 19 states, "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." TEX.FAM.CODE ANN. § 11.03(a) (Vernon Supp.1991), the pertinent portion involved in this opinion, states:

(a) An original suit affecting the parent-child relationship may be brought at any time by:

(1) a parent of the child;

(2) the child (through a representative authorized by the court);

(3) a custodian or person having rights of visitation with or access to the child appointed by an order of a court of another state or country or by a court of this state before January 1, 1974;

(4) a guardian of the person or the estate of the child;

(5) a governmental entity;

(6) any authorized agency;

(7) a man alleging himself to be the biological father of a child who has no presumed father filing in accordance with Chapter 13 of this code, but not otherwise;

(8) a person who has had actual possession and control of the child for at least six months immediately preceding the filing of the petition; or

(9) a person designated as the managing conservator in a revoked or unrevoked affidavit of relinquishment under Section 15.03 of this code or to whom consent to adoption has been given in writing under Section 16.05 of this code.

TEX.FAM.CODE ANN. § 12.01 (Vernon Supp.1991) provides the following:

(a) The parent-child relationship may be established between a child and:

(1) the biological mother by proof of her having given birth to the child;

(2) the biological father as provided by this code; and

(3) an adoptive parent by proof of adoption.

(b) the parent-child relationship extends equally to every child and parent regardless of the marital status of the parents.

TEX.FAM.CODE ANN. § 12.02(a)(1) (Vernon Supp.1991), entitled "Presumption of Paternity," provides:

(a) A man is presumed to be the biological father of a child if:

(1) he and the child's biological mother are or have been married to each other and the child is born during the marriage or not more than 300 days after the date the marriage terminated by death, annulment, divorce, or by having been declared void; ....

We address appellant's third point of error only as our decision on same shall be dispositive of the case. We reiterate the fact that appellant's point of error is entirely grounded in a violation of the TEX.CONST. art. I, § 19 which reads: "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." With regard to this assertion by appellant that the trial court's dismissal of his petition for the reasons already mentioned was a denial of constitutionally guaranteed rights and privileges without due course of law, we feel that the proper analysis of the statutory provision in question permits us to use the same method used when analyzing federal due process complaints. See, Massachusetts Indem. & Life v. Tex. State Bd. of Ins., 685 S.W.2d 104 (Tex.App.--Austin 1985, no writ). The due process clause of the federal constitution, with respect to substantive due process complaints, places the same restrictions on the exercise of state legislative power as the similar clause in the Texas Constitution. TEX.CONST. art. I, § 19; Mellinger v. City of Houston, 68 Tex. 37, 3 S.W. 249 (1887); Massachusetts Indem., supra at 113.

In an attempt to limit and provide guidance for interpretations of the federal due process clause, the United States Supreme Court has insisted that the allegedly violated interest must involve life, liberty, or property; that the life, liberty, or property interest be of "fundamental" proportions, and that it be an interest traditionally protected by our society. As the Court has put it, the due process clause affords only those protections "so rooted in the traditions and conscience of our people as to be ranked as fundamental." Michael H. v. Gerald D., 491 U.S. 110, 122, 109 S.Ct. 2333, 2341, 105 L.Ed.2d 91, 105 (1989); Snyder v. Massachusetts, 291 U.S. 97, 54 S.Ct. 330, 78 L.Ed. 674 (1934). With regard to the rights and privileges accorded to parenthood, these have been deemed to be fundamental...