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Click here for the full text of this decision FACTS:Kathlyn Smith, the appellant, filed a suit against Barbara Trusty Smith, the appellee, alleging various tort theories based on an affair between the appellant’s husband and the appellee. The appellant’s original petition also contained a petition for declaratory relief alleging the Legislature acted outside its authority by abolishing the common law causes of action for criminal conversation and alienation of affection. Texas Family Code ��1.106 and 1.107. After the appellant non-suited her tort claims against the appellee, and the trial court entered a final judgment declaring the statutes constitutional, this appeal ensued. HOLDING:Affirmed. To make an open courts argument, a plaintiff must satisfy two criteria: first, a well-established common law cause of action must be restricted; and second, the restriction must be unreasonable or arbitrary when balanced against the purpose and basis of the statute. Criminal conversation was adopted as part of the common law in Texas through Article I of the Texas statutes. Felsenthal v. McMillan, 493 S.W.2d 729 (Tex. 1973). While the tort of criminal conversation was not recognized in Texas until Felsenthal in 1973, the Texas Supreme Court acknowledged its old English common law heritage. In 1975, as a direct response to Felsenthal, the Legislature abolished the cause of action of criminal conversation; thus, criminal conversation was recognized as a common law cause of action in Texas for less than two years. The limited life span of criminal conversation in Texas does not elevate it to a well-established common law cause of action. The court finds the appellant has not satisfied the first criterion of an open courts violation with respect to criminal conversation. The appellant also cannot satisfy the second criterion because the legislative purpose and basis of the statute abolishing the cause of action for criminal conversation outweigh a litigant’s right of redress. The tort of alienation of affection was not recognized in Texas until 1971, even though it also stemmed from the old English common law. Reagan v. Vaughn, 804 S.W.2d 463 (Tex. 1990). Unlike criminal conversation, however, alienation of affection was not abolished until 1987; thus, the tort survived for approximately 16 years. The court finds alienation of affection was a well-established common law cause of action. The Legislature’s abolition of a cause of action based on alienation of affection restricts a party’s right to sue a third party for interference with the marital relationship. Thus, since alienation of affection was a well-established common law cause of action which is now prohibited, the appellant has satisfied the first criterion. The court finds the legislative purpose and rationale of the statute outweigh a litigant’s right of redress. Here, as with criminal conversation, the limited value of bringing such a cause of action cannot overcome the strong constitutional presumption afforded a statute. Furthermore, the appellant has other avenues for relief, including bringing a cause of action for intentional infliction of emotional distress, and utilizing the concupiscence of the wayward spouse to support an unequal just and right division of the community estate. The court finds that �1.107′s purpose and bases outweigh the right of a litigant to sue a third party for alienation of affection, and holds that Texas Family Code �1.107 does not violate the open courts provision. OPINION:Anderson, J.; Hedges, C.J., Anderson and Guzman, JJ.

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