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DISSENTING OPINION ON DENIAL OF REHEARING EN BANC

Dissenting opinion by: Sarah B. Duncan, Justice, joined by Justice Tom Rickhoff

I respectfully dissent to the denial of rehearing en banc. The panel holds Simmons’ suit is barred by the doctrine of collateral estoppel, which precludes relitigation of previously-adjudicated issues of fact essential to a prior judgment. But Simmons’ suit does not seek to relitigate the finding in the divorce decree establishing a parent-child relationship between him and T.S.S. Indeed, the statute under which Simmons sues – section 161.005(a) of the Texas Family Code -presumes an existing parent-child relationship and provides for its termination if it is in the child’s best interest. T.S.S.’s best interest – the only material issue in this case – was not addressed by Hessler’s motion for summary judgment. Accordingly, we should grant the motion for reconsideration en banc, reverse the trial court’s summary judgment and remand the cause for further proceedings.

 
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