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Click here for the full text of this decision FACTS:The attorney general of Texas complains of the trial court’s granting a new trial and ordering genetic testing in the underlying suit affecting parent-child relationship. The attorney general contends that Marco J. DeJong Jr., who signed and filed an acknowledgment of paternity, is time-barred from challenging his paternity under the Texas Family Code. Daisy Selvera gave birth to a child, D.A.D. The day after D.A.D.’s birth, DeJong and Selvera signed an acknowledgment of paternity, declaring that they were D.A.D.’s biological parents. DeJong and Selvera were both adults when they signed the acknowledgment of paternity, which was filed with the Bureau of Vital Statistics Jan. 4, 2001. Under the Texas Family Code, a valid acknowledgment of paternity filed with the Bureau of Vital Statistics is the equivalent of an adjudication of paternity. Despite suspicions that he was not D.A.D.’s biological father, DeJong failed to institute a timely proceeding to challenge his legal status as D.A.D.’s father. Selvera sought the assistance of the Texas attorney general in establishing child support for D.A.D., and the attorney general filed a suit affecting parent-child relationship in March 2005. The attorney general’s petition alleged that DeJong was the child’s father pursuant to an acknowledgment of paternity. In response to the suit, DeJong filed an answer consisting solely of a general denial. The suit proceeded before an associate judge, who refused DeJong’s oral request for genetic testing. On Aug. 16, 2005, the associate judge signed an order establishing conservatorship, visitation, child support and medical support for D.A.D. The order includes a finding that DeJong is D.A.D’s father and has a duty of support. When DeJong did not appeal the associate judge’s order it became the order of the trial court by operation of law. DeJong timely filed a motion for new trial. This motion raised constitutional issues about the acknowledgment of paternity statute and argued that DeJong “never executed an Acknowledgment of Paternity which meets the requirements of �160.302,” the current statute authorizing acknowledgments of paternity. DeJong maintained that his acknowledgment of paternity had no legal effect, because it did not include information required by the current acknowledgment of paternity statute. DeJong also claimed that the evidence was legally and factually insufficient to support a finding that he is D.A.D.’s legal father, because the acknowledgment was not offered into evidence at the final hearing. DeJong’s motion for new trial was heard by a district court judge who granted a new trial “in the interest of justice and fairness” as to the “issue of paternity only” and denied DeJong’s motion “in all other respects.” After the court granted the new trial, DeJong filed a motion asking the court to order genetic testing in aid of determining parentage. DeJong also filed a first amended answer and a countersuit in the same cause number. For the first time, DeJong pleaded “affirmative defenses,” including that 1. he is not D.A.D.’s father; 2. his acknowledgment of paternity is not “valid” because the instrument he signed did not satisfy the new statutory requirements; 3. the acknowledgment was executed on the basis of fraud, duress or material mistake of fact, and genetic testing had established he is not the father of the child; 4. Selvera committed perjury in signing the acknowledgment of paternity; and 5. the acknowledgment constituted a waiver of his state and federal due process rights. DeJong’s countersuit reiterated his affirmative defenses and broadly attacked the constitutionality of the four-year statutory bar to challenging an acknowledgment of paternity. On Oct. 18, 2005, the day after DeJong filed his countersuit, the trial court held a hearing on DeJong’s motion for genetic testing. In opposing this motion, the attorney general argued the trial court did not have the authority to order genetic testing because DeJong was D.A.D.’s legal father and had failed to challenge his acknowledgment of paternity in a timely fashion. Notwithstanding these arguments, the district court ordered D.A.D., DeJong and Selvera to submit samples for genetic testing, and ordered a laboratory to report its results in compliance with Texas Family Code �160.504. The attorney general filed the instant petition for a writ of mandamus, in which it asserts the trial court’s order granting a new trial and genetic testing order are void. The attorney general also requested a stay of the genetic testing order. The court stayed the genetic testing order and requested a response to the petition, and ultimately heard oral arguments. HOLDING:The court directs the trial court to vacate the genetic testing order. This case is analogous to Amanda v. Montgomery, 877 S.W.2d 482 (Tex. App. – Houston [1st Dist.] 1994, orig. proceeding). Here, the trial court ordered genetic testing in the face of a legally established parent-child relationship. Much like the petitioner in a bill-of-review proceeding, DeJong has significant hurdles to overcome before his legal status as D.A.D.’s father can be set aside. All parties agree that DeJong’s challenge to the acknowledgment of paternity is untimely, and the statute expressly forbids even a collateral attack to the acknowledgment of paternity at this juncture. As a threshold matter, DeJong must either establish his acknowledgment is not valid under the current version of �160.302 or show he can sustain his untimely challenge, presumably by proving the acknowledgment of paternity statute to be unconstitutional. Even DeJong’s pleadings underscore that he must initially set aside his acknowledgment of paternity. The prayer in DeJong’s countersuit first seeks an order rescinding or vacating the acknowledgment and deleting his acknowledgment from the public records, then seeks genetic testing and an adjudication of paternity. Because genetic testing in no way advances DeJong’s threshold arguments about the validity of his acknowledgment or the constitutionality of the statute, genetic testing is irrelevant at this phase of the proceeding. Therefore, the trial court erred in ordering genetic testing. D.A.D. is currently 5 years old, and DeJong has been her legal father for virtually all of her life. At this stage, genetic testing results are highly sensitive, and the burden of irrelevant and unnecessary genetic testing far outweighs any possible benefit to DeJong. As stated in Amanda, “The production of unauthorized discovery, once ordered, cannot be undone.” As such, an appeal does not provide an adequate remedy for the trial court’s error. OPINION:Marion, J.; Angelini, Marion and Simmons, Justice.

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