State v. Lavan
| Decision Date | 19 December 1990 |
| Docket Number | No. 3-90-082-CV,3-90-082-CV |
| Citation | 802 S.W.2d 73 |
| Parties | The STATE of Texas, on Behalf of Itself and Jane Doe, Appellants, v. Willie LAVAN, Jr., Appellee. |
| Court | Texas Court of Appeals |
Jim Mattox, Atty. Gen., Charles G. Childress, Asst. Atty. Gen., Child Support Enforcement, Austin, for appellants.
Mark M. Humble, Cameron, for appellee.
Before POWERS, GAMMAGE and CARROLL, JJ.
On behalf of Jane Doe and itself, the State sued Willie Lavan, Jr. in a statutory cause of action to establish his paternity respecting Jane's child, X. Tex.Fam.Code Ann. § 13.01(a) (Supp.1991). The trial court sustained Lavan's motion for summary judgment, ordering that the State and Jane take nothing. They appeal. We will affirm the judgment.
During her marriage to John Doe, Jane bore two children whom we shall designate X and Y. John and Jane were divorced in 1986. The decree provided expressly for Y's support, as a child of the marriage, but omitted any mention of X.
To establish that Lavan is X's biological father, and therefore obligated to pay child support, Jane and the State brought against Lavan in 1988 the statutory cause of action authorized in § 13.01(a) of the Code:
A suit to establish the parent-child relationship between a child who has no presumed father and the child's biological father may be brought by the mother ... or by any other person or governmental entity having standing to sue under Section 11.03 of this code.
(Emphasis added). Lavan moved for summary judgment on the ground that X had a "presumed father" as a matter of law, namely John, who was married to Jane when X was conceived and born; and, for that reason, a § 13.01(a) action could not be brought with respect to X, as the statute explicitly limits such actions to situations in which a child has no presumed father.
The trial court rendered summary judgment on Lavan's motion. Jane and the State appeal. For convenience, we shall refer mainly to the State in the discussion that follows.
FILIATION PROCEEDINGS UNDER FAMILY CODE § 13.01(a)
At common law, a child was "illegitimate" or a "bastard" when born to an unmarried woman or to a married woman and a man not her husband. The law recognized no system of rights between an illegitimate child and either parent because in legal contemplation he was the child of no one ("filius nullius") or of the people generally ("filius populi"). Thus, the child was not entitled to receive support or to inherit from either biological parent. By judge-made law, these disabilities of illegitimacy were removed to an extent by permitting the child to inherit through his mother; there was evidently no similar evolution of the common law giving rise to any rights or obligations between an illegitimate child and his biological father. See generally Pettus v. Dawson, 82 Tex. 18, 17 S.W. 714 (1891); Speer, Law of Marital Rights in Texas § 101, at 137-38 (3d ed. 1929); Tiffany, Law of Persons and Domestic Relations § 113 (1896); Heard, Illegitimate Children--Father's Duty to Support, 6 Baylor L.Rev. 520 (1954).
In the case of an illegitimate child born to a married woman and her paramour, the common law did, however, attempt in another way to protect the child from the In many jurisdictions, the legislature intervened to protect illegitimate children by enacting statutes that authorized "filiation proceedings," or statutory causes of action to establish a putative father's biological parentage and a resulting statutory duty to support his illegitimate child. In 1975, for example, the Texas Legislature enacted § 13.01 of the Family Code for that purpose. 1975 Tex.Gen.Laws, ch. 476, § 24, at 1261-62 (Tex.Fam.Code Ann. § 13.01, since amended.) 1 Section 13.01(a) authorizes the statutory cause of action to be brought for the purpose of establishing "the parent-child relationship between a child who has no presumed father and the child's biological father." Succeeding sections prescribe certain pretrial steps (§§ 13.02-13.05), competent evidence (§ 13.06), necessary parties (§ 13.07), the effect of court decrees (§§ 13.08-13.09), voluntary paternity proceedings, (§§ 13.21-13.24), venue (§ 13.41), and certain collateral or The State alleged in its petition that Lavan was the "biological father" of X, but the State also alleged that John Doe was X's "presumptive legal father ... because he was married to the mother ... at the time the child was conceived and/or born...." Under this pleading and § 13.01(a), the statutory cause of action cannot be established as a matter of law, for the statutory action is only available "to establish the parent-child relationship between a child who has no presumed father and the child's biological father...."
legal disabilities and the stigma of illegitimacy--the common law erected a presumption that the wife's husband was the child's biological father. In some jurisdictions, the presumption was almost irrebuttable; in others it was simply made difficult of contrary proof. The latter was the case in Texas, where the common law held originally that the mere testimony of the husband or wife could not overcome the presumption, Esparza v. Esparza, 382 S.W.2d 162, 168 (Tex.Civ.App.1964, no writ), a rule modified subsequently by a holding that the presumption could be overcome by the testimony of either when it showed the husband's impotency or his want of "access." Davis v. Davis, 521 S.W.2d 603, 608 (Tex.1975) ancillary matters (§§ 13.42-13.44). The State brought such a cause of action in the present case.
Notwithstanding the statutory language, however, the State contends actions under § 13.01(a) are not limited to cases in which a child "has no presumed father." The State infers from the "legislative history" of § 13.01(a) that the statutory expression--"a child who has no presumed father"--was included in the 1989 amendment, not for the purpose of limiting the circumstances in which the cause of action may be established but merely to avoid the opprobrium of the expression it replaced: "illegitimate child of a man." Such being the intent behind the reference to "a child who has no presumed father," the State infers that the statutory cause of action authorized in § 13.01(a) is available even in behalf of a child who has a presumed father, as X does in the present case. The State makes this contention notwithstanding the violence it does to the statutory language.
Section 13.01(a) is unambiguous in limiting the availability of the cause of action to cases in which a child has no presumed father. The limitation being unambiguous, we should not refer to "legislative history" as a basis for erasing through "interpretation" the explicit qualification laid down by the legislature as part of the statutory cause of action. City of Port Arthur v. Tillman, 398 S.W.2d 750, 752 (Tex.1965); Brazos River Authority v. City of Graham, 163 Tex. 167, 354 S.W.2d 99, 109 (1961); Cf., Tex.Gov't Code Ann. § 311.023 (1988). 2 We cannot adopt the State's theory without contradicting or adding to § 13.01(a) and changing its meaning to include something that the words of the statute cannot reasonably sanction or sustain. Commonwealth of Massachusetts v. United N. & S.D. Co., 140 Tex. 417, 168 S.W.2d 226, 229 (1942); Simmons v. Arnim, 110 Tex. 309, 220 S.W. 66, 70 (1920).
Chapter 13 contains no language that will support the inference for which the State contends. If the legislature had intended the cause of action to be authorized irrespective of whether a child has a presumed father, we believe that body would not have composed § 13.01(a) in language that expresses so unambiguously the opposite intention: "A suit to establish the parent-child relationship between a child who has no presumed father and the child's biological father."
Moreover, the purpose of the statutory cause of action and the rationale of limiting it to cases where a child has no presumed father are self-evident, reasonable, and contrary to the State's theory. The purpose of the statutory cause of action is "to establish the parent-child relationship" and the attendant system of rights and obligations between parent and child, including the parent's obligation to support the child. There is no necessity to establish a parent-child relationship in cases in which a child has a presumed father, for in such cases that relationship already exists by operation of law between the presumed father and his child. And to this already established relationship, the law imputes the full system of legal rights and obligations between If the presumed father wishes to disestablish the parent-child relationship resulting from the presumption and the attendant system of legal rights and obligations, he must do so in another proceeding "affecting the parent-child relationship," in which proceeding he defeats the presumption by showing and establishing that he is not in fact the child's biological father. Purdom, Texas Family Code With Commentaries: Chapter 13. Determination of Paternity, 21 Tex.Tech.L.Rev. 1277, 1282 (1990). The cause of action provided by § 13.01(a) is designed, not for his benefit, but for the benefit of a child who is outside any father-child relationship until that child establishes such a relationship with his biological father, at which time the law imputes to the relationship the system of legal rights and obligations between parent and child.
parent and child, including the presumed father's obligation to support the child.
Chapter 12 of the Family Code does not establish a filiation proceeding of any kind. It provides rather for the reverse, as indicated below. In §§ 12.01 and 12.03, the legislature specified the circumstances which give rise to a legal relationship between a child and a parent, irrespective of whether the child's biological parents are married. The...
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