In re Sullivan

• Decision Date: 24 February 2005
• Docket Number: No. 14-04-00514-CV.,14-04-00514-CV.
• Citation: 157 S.W.3d 911
• Parties: In re Sharon Elizabeth SULLIVAN, Relator.
• Court: Texas Court of Appeals

157 S.W.3d 911

In re Sharon Elizabeth SULLIVAN, Relator.

No. 14-04-00514-CV.

Court of Appeals of Texas, Houston (14th Dist.).

February 24, 2005.

Peggy Sue Bittick, Carrie Suzanne Holman, Pearland, for appellants.

Don Cruse, Austin, Ellen Yarrell, Sallee S. Smyth, Houston, for appellees.

Panel consists of Chief Justice HEDGES and Justices FROST and GUZMAN.

SUBSTITUTE MAJORITY OPINION

KEM THOMPSON FROST, Justice.

This original proceeding presents a question of first impression under the Texas Family Code: Does an unmarried man who donated sperm to an unmarried woman for the conception of a child have standing to maintain a proceeding to adjudicate parentage of the resulting child?

Relator Sharon Sullivan seeks a petition for writ of mandamus commanding the respondent, the Honorable Bonnie Hellums, Judge of the 247th Judicial District Court of Harris County, to (1) vacate her order denying Sullivan's plea to the jurisdiction and (2) dismiss for lack of standing the proceeding to adjudicate parentage filed by real party in interest Brian Keith Russell. We conclude that, under section 160.602(3) of the Texas Family Code, the respondent did not clearly abuse her discretion in ruling that Russell has standing to maintain a proceeding to adjudicate parentage. Accordingly, we deny Sullivan's petition for writ of mandamus.

I. FACTUAL AND PROCEDURAL BACKGROUND

Sullivan is an unmarried woman. Russell is an unmarried man. Neither has been married previously. Sullivan wanted to conceive a child. Russell agreed to provide his sperm so that Sullivan could be artificially inseminated. Russell and Sullivan signed a "Co-Parenting Agreement" on February 6, 2003,¹ which recites these facts and, in addition, states the following:

3. BRIAN KEITH RUSSELL has agreed to provide his semen to SHARON SULLIVAN for the purpose of donor insemination.

4. Each party agrees that SHARON SULLIVAN's decision to conceive and bear a child was actually a joint decision of the parties and based upon the commitment of each party to parent the child.

5. Each party agrees that, during the calendar year 2003, SHARON SULLIVAN will attempt to become pregnant through the procedure of donor insemination, and that such inseminations will continue until conception occurs.

6. Each party agrees that any child born as a result of the donor insemination procedure will be the child of BRIAN KEITH RUSSELL as if he and SHARON SULLIVAN were married at the time of conception, and that BRIAN KEITH RUSSELL will be named as the father on the child's birth certificate.

...

11. The parties agree that SHARON SULLIVAN shall provide the primary residence for the child as long as she is able to do so. The parties agree that BRIAN KEITH RUSSELL shall have possession of the child at any and all times mutually agreed to in advance by the parties. Failing mutual agreement, BRIAN KEITH RUSSELL shall have possession of the child under the specified terms set out the [sic] Standard Possession Schedule attached to this agreement and incorporated herein.

Insemination and conception were successful in June 2003, and the resulting child, L.J.S., was born on March 2, 2004. However, before the child's birth, a disagreement arose between Russell and Sullivan, and on March 31, 2004, Russell filed an "Original Petition to Adjudicate Parentage, Suit Affecting the Parent-Child Relationship and Breach of Contract" in the trial court. In this pleading, Russell alleges he is L.J.S.'s father and seeks the following relief:

(1) a decree establishing a parent-child relationship between L.J.S. and Russell;

(2) an order appointing Russell and Sullivan as joint managing conservators of L.J.S.;

(3) temporary orders appointing Russell and Sullivan as joint managing conservators of L.J.S., ordering Sullivan to submit L.J.S. for genetic testing to affirm the parentage, and ordering that a standard possession order be put in place and that visits between Russell and L.J.S. begin immediately;

(4) injunctive relief preventing Sullivan from hiding L.J.S., removing L.J.S. from a geographical boundary to be defined by the court, and from using for any purpose, especially conceiving a child, any frozen or preserved sperm from Russell; and

(5) attorney's fees and recovery for breach of contract and promissory estoppel, including damages for mental anguish.

Sullivan filed a plea to the jurisdiction, claiming that under the Texas Family Code, Russell lacks standing to bring a proceeding to adjudicate parentage because he is a sperm donor with no parental rights. After a hearing, the trial court ruled that Russell had standing and denied Sullivan's plea to the jurisdiction. Sullivan then filed a petition for writ of mandamus in this court alleging that the trial judge clearly abused her discretion by finding that Russell has standing to maintain a proceeding to adjudicate his parentage of L.J.S.

II. STANDARD OF REVIEW

To obtain mandamus relief, Sullivan, as the relator, must demonstrate (1) that the lower court committed a clear abuse of discretion, (2) for which there is no adequate remedy at law, such as a normal appeal. Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex.1992). Both Russell and Sullivan agree that Sullivan would have no adequate remedy at law if the trial court clearly abused its discretion.² In deciding whether the trial court clearly abused its discretion in determining that Russell has standing to maintain a proceeding to adjudicate parentage (hereinafter "parentage proceeding"), we do not consider the underlying merits of the case.

III. ANALYSIS

Standing is a prerequisite to subject-matter jurisdiction, which is essential to a court's power to decide a case. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 553-54 (Tex.2000). A party may challenge the absence of subject-matter jurisdiction by a plea to the jurisdiction and by other procedural vehicles. Id. at 554. A plea to the jurisdiction is a dilatory plea, the purpose of which is to defeat the alleged claims, without regard to whether they have merit. Id. The purpose of a dilatory plea is not to force a plaintiff to preview its case on the merits, but to establish a reason why the merits of its case should never be reached. Id. The Texas Supreme Court has emphasized that a court should not decide standing issues based on its views of the merits:

In deciding a plea to the jurisdiction, a court may not weigh the claims' merits but must consider only the plaintiffs' pleadings and the evidence pertinent to the jurisdictional inquiry. When we consider a trial court's order on a plea to the jurisdiction, we construe the pleadings in the plaintiff's favor and look to the pleader's intent.

Id. at 554-55.

A trial court accepts the factual allegations in the petition as true, unless the defendant pleads and proves the allegations were made fraudulently to confer jurisdiction. Id. at 554; TAC Realty, Inc. v. City of Bryan, 126 S.W.3d 558, 561 (Tex.App.-Houston [14th Dist.] 2003, pet. denied). When reviewing a trial court's order on a plea to the jurisdiction, an appellate court may look to evidence outside of the pleadings:

[T]he issues raised by a dilatory plea are often such that they cannot be resolved without hearing evidence. And because a court must not act without determining that it has subject-matter jurisdiction to do so, it should hear evidence as necessary to determine the issue before proceeding with the case. But the proper function of a dilatory plea does not authorize an inquiry so far into the substance of the claims presented that plaintiffs are required to put on their case simply to establish jurisdiction.

...

The court should, of course, confine itself to the evidence relevant to the jurisdictional issue.

Bland Indep. Sch. Dist., 34 S.W.3d at 554-55.

Standing is a constitutional prerequisite to suit in both federal courts and the courts of Texas. Williams v. Lara, 52 S.W.3d 171, 178 (Tex.2001). Nonetheless, the judge-made criteria regarding standing do not apply when the Texas Legislature has conferred standing through a statute. Id. In statutory standing cases, such as this, the analysis is a straight statutory construction of the relevant statute to determine upon whom the Texas Legislature conferred standing and whether the claimant in question falls in that category. See Tex. Dep't of Protective and Regulatory Servs. v. Sherry, 46 S.W.3d 857, 859-61 (Tex.2001) (determining whether putative father had standing to maintain a suit affecting the parent-child relationship based solely on construction of statutory standing provision).

Russell asserts that he has standing under a statute that allows "a man whose paternity of the child is to be adjudicated" to maintain a parentage proceeding. See TEX. FAM.CODE ANN. § 160.602 (Vernon Supp.2004). It is undisputed that Russell is a man, but Sullivan asserts that Russell is not "a man whose paternity is to be adjudicated" because, Sullivan claims, Russell is a "donor" who lacks parental rights and standing to maintain a parentage proceeding. See TEX. FAM.CODE ANN. § 160.102(6) (Vernon 2002) (defining "donor" as "an individual who produces eggs or sperm used for assisted reproduction, regardless of whether the production is for consideration" but excluding from this definition "a husband who provides sperm or a wife who provides eggs to be used for assisted reproduction by the wife ... or ... a woman who gives birth to a child by means of assisted reproduction"). Sullivan asserts that section 160.702 of the Texas Family Code deprives Russell of standing because, under that section, "a donor is not a parent of a child conceived by means of assisted reproduction." See TEX. FAM.CODE ANN. § 160.702 (Vernon 2002).

It is undisputed that L.J.S. was conceived by means of assisted reproduction using Russell's sperm and that Russell and Sullivan are not married to each other. Nonetheless, Russell asserts that section 160.702 does not apply to a known donor of sperm who...