                                 NUMBER 13-11-00006-CV

                                    COURT OF APPEALS

                          THIRTEENTH DISTRICT OF TEXAS

                             CORPUS CHRISTI - EDINBURG


            IN RE: OFFICE OF THE ATTORNEY GENERAL OF TEXAS


                           On Petition for Writ of Mandamus.


                            MEMORANDUM OPINION
                   Before Justices Garza, Benavides, and Vela
                   Memorandum Opinion by Justice Benavides1

        Relator, Office of the Attorney General of Texas (“OAG”), filed a petition for writ of

mandamus through which it seeks to compel the trial court2 to vacate its order requiring

genetic testing in a divorce proceeding.           As stated herein, we conditionally grant the


        1
         See TEX. R. APP. P. 52.8(d) (“When granting relief, the court must hand down an opinion as in any
other case.”); TEX. R. APP. P. 47.4 (distinguishing opinions and memorandum opinions).
        2
         The respondent in this original proceeding is the Honorable Arnold Cantu, Jr., Presiding Judge of
the County Court at Law Number Five of Hidalgo, County, Texas. See TEX. R. APP. P. 52.2.
petition for writ of mandamus.

                                      I. BACKGROUND

       Edgar Zamora and Veronica Tostado were married on May 9, 2005. They had

two children who were born during the marriage:       B.I.Z. was born on September 14,

2005, and M.S.Z. was born on October 11, 2006. The couple subsequently separated.

In 2007, the OAG obtained an agreed child support review order requiring Zamora to pay

monthly child support and granting Tostado retroactive child support.   In 2008, the OAG

obtained another agreed child support review order which discontinued the previously

ordered child support because the couple had reconciled, but which granted a child

support arrearage judgment against Zamora.

       In 2009, Zamora filed for divorce.    Shortly thereafter, the OAG obtained a third

agreed child support review order reinstating Zamora’s child support obligations and

granting another cumulative arrearage judgment against him.       In each of the agreed

child support orders and in Zamora’s pleadings in the divorce proceeding, Zamora is

referred to as the father of the children.

       In the divorce proceeding, on November 16, 2010, Zamora filed a “Motion for

Blood Test to Rescind Acknowledgment of Paternity Pursuant to Section 160.308 of the

Texas Family Code.”      See TEX. FAM. CODE ANN. § 160.308 (Vernon 2008).      According

to the motion, Tostado “has been making remarks to [Zamora] that he is not the father of

the children.” The OAG, who had intervened in the divorce proceeding, contested the

motion on grounds that, inter alia, Zamora had been adjudicated the father of the


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children based on the agreed orders and the admissions in Zamora’s pleadings, and the

statute of limitations barred a request for genetic testing.   After a hearing on Zamora’s

motion, the trial court ordered Zamora, Tostado, and the two children to undergo genetic

testing.

        On January 7, 2010, the OAG filed this original proceeding and a motion for

emergency temporary stay of the order for genetic testing. That same day, this Court

granted the motion for emergency relief and stayed the trial court’s “Order to Submit to

Blood Tests.” The Court further requested that the real party in interest, Zamora, file a

response to the OAG’s petition for writ of mandamus.           Zamora’s response to the

petition was due on or before January 18, 2011, but no such response has been filed to

date.

                                      II. MANDAMUS

        Mandamus is an extraordinary remedy that issues only if the trial court clearly

abused its discretion and the relator has no adequate remedy by appeal.       In re Sw. Bell

Tel. Co., 235 S.W.3d 619, 623 (Tex. 2007) (orig. proceeding). The heavy burden of

establishing an abuse of discretion and an inadequate appellate remedy is on the party

resisting discovery.    In re CSX Corp., 124 S.W.3d 149, 151 (Tex. 2003) (orig.

proceeding). A trial court commits a clear abuse of discretion when its action is “so

arbitrary and unreasonable as to amount to a clear and prejudicial error of law.” Id.

(quoting CSR Ltd. v. Link, 925 S.W.2d 591, 596 (Tex. 1996)).       It is the relator’s burden

to provide this Court with a sufficient record to establish the right to mandamus relief.


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Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992); In re Pilgrim’s Pride Corp., 187

S.W.3d 197, 198-99 (Tex. App.–Texarkana 2006, orig. proceeding); see TEX. R. APP. P.

52.3.

        An order requiring genetic testing may under certain circumstances be subject to

review by mandamus.         See Office of Att’y Gen., 276 S.W.3d 611, 621 (Tex.

App.–Houston [1st Dist.] 2008, orig. proceeding) (collecting cases).        First, an order

requiring genetic testing is a discovery order, which, if erroneously issued, may not be

cured on appeal.    See In re Att’y Gen. of Tex., 195 S.W.3d 264, 270 (Tex. App.–San

Antonio 2006, orig. proceeding).       Second, genetic testing results are highly sensitive

and personal in nature, and the burden of testing may outweigh any possible benefit and,

instead, cause irreparable harm. See id.; e.g., In re Rodriguez, 248 S.W.3d 444, 454

(Tex. App.–Dallas 2008, orig. proceeding).

                                        III. ANALYSIS

        As stated previously, in the instant case, Zamora sought genetic testing under the

auspices of section 160.308 of the Texas Family Code.       Sections 160.307 and 160.308

govern proceedings for the rescission of acknowledgments or denials of paternity under

subchapter D of the Uniform Parentage Act.         See TEX. FAM. CODE ANN. §§ 160.307,

160.308 (Vernon 2008).          Section 160.308, upon which Zamora relies, extends the

period of time within which rescission may be sought “only on the basis of fraud, duress,

or material mistake of fact.”    See id. § 160.308(a). Based on the record before us, this

section is inapplicable to the case at hand, which does not concern an acknowledgment


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of paternity under subchapter D of the Uniform Parentage Act.        See In re Rodriguez,

248 S.W.3d 444, 451-53 (Tex. App.–Dallas 2008, orig. proceeding).        Moreover, even if

this section were to apply, and we were to construe the agreed orders and statements by

Zamora that he is the children’s father as an official acknowledgment of paternity under

the code, Zamora is not entitled to genetic testing because he has not first made a

successful challenge to the acknowledgment of paternity. See In re Att’y Gen. of Tex.,

195 S.W.3d at 269 (“A trial court abuses its discretion when a child’s paternity has been

legally established and it orders genetic testing before such parentage determination has

been set aside”); see also Amanda v. Montgomery, 877 S.W.2d 482, 487 (Tex.

App.–Houston [1st Dist.] 1994, orig. proceeding).       More saliently, however, and as

further discussed herein, Zamora’s request for genetic testing is barred by the applicable

statute of limitations.

       There is a presumption of paternity where a man is married to the mother of the

child and the child is born during the marriage.   See TEX. FAM. CODE ANN. § 160.204(a)

(Vernon 2008). This presumption legally establishes the father-child relationship

between the man and child.      See id. § 160.201(b)(1) (Vernon 2008). A “presumed

father” is, by operation of law under section 160.204, “recognized as the father of the

child until that status is rebutted or confirmed in a judicial proceeding.”           Id. §

160.102(13) (Vernon 2008); In re S.C.L., 175 S.W.3d 555, 557 (Tex. App.–Dallas 2005,

no pet.). The presumption of paternity may be rebutted only by:        (1) a proceeding to

adjudicate parentage under Subchapter G, or (2) the filing of a valid denial of paternity by


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the presumed father in conjunction with the filing by another person of a valid

acknowledgment of paternity.     See TEX. FAM. CODE ANN. § 160.204(b) (Vernon 2008); In

re S.C.L., 175 S.W.3d at 557.

       When a child has a presumed father, a proceeding to adjudicate parentage must

be commenced “not later than the fourth anniversary of the date of the birth of the child.”

TEX. FAM. CODE ANN. § 160.607(a). However, a proceeding seeking to disprove the

father-child relationship between a child and the child’s presumed father may be

maintained at any time if the court determines that: (1) 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; and (2) the presumed father never represented

to others that the child was his own.   See id. § 160.607(b).   The party seeking to avoid

the four year period of limitations bears the burden of proving a provision that would toll

the statute of limitations.   See In re Rodriguez, 248 S.W.3d at 451; In re S.C.L., 175

S.W.3d at 558 n.1.

       The Texas Family Code provides that, except as otherwise provided by the

subchapters regarding genetic testing and proceedings to adjudicate parentage, “a court

shall order a child and other designated individuals to submit to genetic testing if the

request is made by a party to a proceeding to determine parentage.”      Id. § 160.502(a).

“Therefore, a party must be entitled to maintain a proceeding to adjudicate parentage as

set out in Subchapter G before a trial court can order genetic testing to determine

parentage.”   In re Rodriguez, 248 S.W.3d at 450-51; see Amanda, 877 S.W.2d at


                                             6
486-87 (granting mandamus relief from an order for genetic testing requested by a

presumed father who had failed to make a prima facie showing that his bill of review

challenging paternity was not barred as a matter of law):

        Since the limitation on proceedings to adjudicate parentage for a child with
        a presumed father is contained in Subchapter G “Proceeding to Adjudicate
        Parentage,” a court cannot order genetic testing if the proceeding to
        adjudicate parentage is barred as a matter of law by the four-year
        limitations period and the party requesting the testing produces no
        evidence of the exception found in section 160.607(b).

In re Rodriguez, 248 S.W.3d at 451.

        The children subject to the trial court’s order requiring genetic testing were born

during Zamora and Tostada’s marriage.           Therefore, under the family code, Zamora is

their presumed father.     See TEX. FAM. CODE ANN. § 160.204(a). His status as their

presumed father has not been rebutted or confirmed in a judicial proceeding.      See TEX.

FAM. CODE ANN. § 160.102(13). Any proceeding to adjudicate parentage in this case is

subject to the four-year time limitation set forth in section 160.607 of the Texas Family

Code.    See id. § 160.607(a).      Zamora did not initiate a proceeding to adjudicate

parentage within the applicable limitations period for either child, nor did he request

blood testing within that same period.        Further, Zamora has not presented evidence of

an exception to the four year statute of limitations. We conclude, on this record and

based on the arguments and authorities provided to the Court, that the trial court abused

its discretion in ordering genetic testing.    See In re Rodriguez, 248 S.W.3d at 453.




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                                      IV. CONCLUSION

       The Court, having examined and fully considered the petition for writ of

mandamus, is of the opinion that relator has shown itself entitled to the relief sought.

Accordingly, we lift our stay order of January 7, 2011, and conditionally grant relator’s

petition for writ of mandamus. We are confident that the trial court will vacate its order

requiring genetic testing.   The writ will issue only if the trial court fails to comply with this

opinion.



                                                           ________________________
                                                           GINA M. BENAVIDES,
                                                           Justice


Delivered and filed the
15th day of February, 2011.




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