In Re: Rodriguez

The trial judge abused his discretion in ordering genetic testing of two minor children born during the marriage of Pedro and Sanjuana Rodriguez after the expiration of the four-year statute of limitations for such testing.

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Click here for the full text of this decision FACTS:On July 30, 2007, the Texas attorney general filed a child support action in the interest of the children of Sanjuana Rodriguez and Pedro Rodriguez in the 255th Judicial District Court of Dallas County. On Sept. 24, 2007, Sanjuana filed her petition for divorce in the 254th Judicial District Court. The two proceedings were consolidated in the 254th Judicial District Court on Oct. 15, 2007. In his Oct. 3, 2007, original answer to Sanjuana’s divorce petition, Pedro alleged that “[h]e did not live or engage in sexual relations with Sanjuana Rodriguez during the probable period of conception and never represented to others that the child was his own.” In the counterpetition for divorce filed on Oct. 3, 2007, Pedro denied that he is the father of the children born Nov. 12, 2000, and Nov. 7, 2002, requested an order for genetic testing respecting these two children based on Chapter 160 of the Texas Family Code, and stated “he has reason to believe” he is not the father of these two children, because another man has claimed he fathered them. Also, Pedro asserted in the counterpetition for divorce that the “parties were married on or about March 17,1999 and ceased to live together as husband and wife on or about May 4, 2005.” All parties acknowledged the minor children were born during the marriage of Sanjuana and Pedro. Both children were over four years old when the proceedings commenced. On Aug. 30, 2007, an associate judge ordered genetic testing in the child support action but did not set a date by which the testing must be done. Rather, the associate judge’s order indicated testing was “TO BE SCHEDULED.” On Sept. 24, 2007, the attorney general appealed the order to the district judge. The district judge denied the attorney general’s appeal of the associate judge’s order for parentage testing on Dec. 10, 2007. Sanjuana and the attorney general filed this petition for a writ of mandamus and a motion for emergency stay on Dec. 27, 2007. They contended no genetic testing should be conducted, because Pedro is the presumed father and is barred from bringing a proceeding to determine parentage by the four-year statute of limitations in Texas Family Code �160.607(a). Relators also contend genetic testing is irrelevant at this stage of the proceeding, because Pedro did not overcome the limitation that bars “disestablishment of his presumed paternity.” In an order dated Dec. 28, 2007, the 5th Court denied Sanjuana’s and the attorney general’s motion for temporary stay, concluding there was no immediate threat of irreparable harm, because the associate judge’s order did not set a date by which the testing must be done. On Jan. 14, 2008, the associate judge signed another order that genetic testing of Pedro and the two children proceed within five days of the order. That same day, relators appealed this second order to the district judge. A de novo hearing was conducted by the district judge on the morning of Jan. 15, 2008. At the hearing, the district judge not only affirmed the associate judge’s second order for genetic testing but issued his own order reducing the time frame for testing from five days to an order that genetic testing take place instanter, by noon, that very day, on Jan. 15, 2008. At the time of the instanter order from the district judge, this mandamus proceeding had been pending in this court for 19 days, and the parties certified they had sent copies of no fewer than four separate pleadings or motions to the district court by that time. On the afternoon of Jan. 15, 2008, Sanjuana and the attorney general filed another motion for emergency stay, which the 5th Court granted that day. On Jan. 17, 2008, Pedro filed a response to the petition for writ of mandamus. In that response, Pedro contended that Sanjuana misrepresented his parentage of the children and asserted that fraudulent misrepresentation regarding the paternity of the children should toll the four-year statute of limitations. On Jan. 18, 2008, Sanjuana and the attorney general filed a second supplement to the petition for writ of mandamus requesting that the 5th Court permanently halt the processing and analysis of the genetic testing ordered in this case; order immediate destruction of the samples taken for genetic testing; order destruction of any record of the results of testing; prohibit disclosure of any testing results to any person; and order counsel for the parties and the parents in this case not to disclose the testing results, if they learn of them, to any other person, including the children. HOLDING:The court conditionally granted the writ of mandamus. Mandamus relief, the court stated, is available when the trial court abuses its discretion or violates a legal duty and there is no adequate remedy at law, such as by appeal. A trial court abuses its discretion if it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law or if it clearly fails to correctly analyze or apply the law. Under �160.204(a), a presumption of paternity exists if a man is married to the mother of the child and the child is born during the marriage. This presumption legally establishes the father-child relationship between the man and child. This presumption may be rebutted only by: 1. a proceeding to adjudicate parentage under Subchapter G of the Family Code; or 2. the filing of a valid denial of paternity by the presumed father in conjunction with the filing by another person of a valid acknowledgment of paternity. When a child has a presumed father, the court stated, the general rule is that a proceeding to adjudicate parentage must be commenced “not later than the fourth anniversary of the date of the birth of the child.” Exceptions to the four-year limitation period, the court stated, include situations where the presumed father and the mother of the child did not live together or engage in sexual intercourse with each other during the probable time of conception, or the presumed father never represented to others that the child was his own. It is undisputed, the court stated, that the children were born during the marriage of Pedro and Sanjuana. Thus, Pedro is the presumed father of the children. The children were both more than four years old when the child support and divorce proceedings were commenced. On this record, the court stated that Pedro was barred under �160.607 from bringing a proceeding to adjudicate the parentage of the children unless he met his burden to present evidence of an exception to the four-year period of limitations. But the court found that he presented no such evidence. Thus, the court concluded that the district judge clearly abused his discretion not only in affirming the associate judge’s order and issuing his own order for genetic testing, but also by issuing the order on an emergency instanter basis. In view of the precipitous instanter order imposed by the district judge, the court concluded that Sanjuana and the attorney general had no adequate remedy by appeal. OPINION:Lang, J.; Wright, O’Neill and Lang, JJ.

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