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Click here for the full text of this decision FACTS:Donald Nelson appeals a summary judgment order denying his petition for bill of review to set aside an order finding Nelson to be the father of K.N. HOLDING:Affirmed. Nelson’s petition, on its face, fails to plead satisfactorily the requisite elements for a bill of review. Nelson’s alleged meritorious defense appears to be that he is the not the biological father of K.N., but his incarceration prevented him from requesting DNA testing prior to the 1998 paternity hearing. However, Nelson was properly served despite his incarceration. Under former Texas Family Code �160.101, in effect when the attorney general brought suit, to trigger the court’s authority to order paternity testing Nelson needed only to mail a response to the court expressly denying paternity. Nelson’s petition and statements at the applicable hearings provide no explanation for why he was prevented from doing this, and the case law itself contains several examples of inmates filing general denials or answers to paternity suits. Nelson’s petition does not adequately allege that his failure to invoke a meritorious defense at the original proceeding stemmed from the extrinsic fraud, accident or wrongful act of another party. The petition claims that Nelson was the victim of extrinsic fraud, but it provides no sworn facts stating with particularity the nature of the fraud, who committed it or how it was perpetrated. At the July and September 2004 hearings on his petition, and on appeal, Nelson argued that Chaney committed extrinsic fraud by convincing him that K.N. was his baby. Even knowingly lying about a child’s parentage, however, has been held not to constitute extrinsic fraud, but intrinsic fraud, that is, fraud that could have been litigated in the underlying paternity suit in which Nelson allowed a default judgment to be taken against him. Nelson had to present a prima facie case that Chaney prevented him from having a fair opportunity to assert that he was K.N.’s father in the paternity suit brought by the attorney general. Nelson was put on notice by the very nature of the paternity proceeding that he could avail himself of the defense of non-paternity and that he could obtain a DNA test to support his defense. Nelson presents no sworn facts showing that Chaney prevented him from availing himself of DNA testing at the time of the paternity suit. Thus, his contention that he was prevented by extrinsic fraud from establishing his non-paternity is without merit. Nelson contends that the trial court erred in granting the attorney general’s summary judgment motion to dismiss his bill of review. As the defendant in this case, the attorney general was entitled to have his motion for summary judgment granted if he could negate, as a matter of law, at least one necessary element of Nelson’s bill of review. Nelson failed to establish either a meritorious prima facie defense or extrinsic fraud. Thus, Nelson did not satisfy the requisite elements of his theory of recovery and the attorney general’s motion for summary judgment was properly granted. The court notes that the trial court abused its discretion in ordering DNA testing. absent Nelson’s making out a successful prima facie case for bill of review, which he failed to do, the trial court lacked the discretion to order a DNA test. OPINION:Keyes, J.; Nuchia, Keyes and Hanks, JJ.

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