












 
 
 
 
 
 
                                      COURT
OF APPEALS
                                       SECOND
DISTRICT OF TEXAS
                                                   FORT
WORTH
 
                                        NO.
2-04-344-CV
 
 
IN
THE INTEREST 
 
OF
K.N.P., A CHILD
 
                                              ------------
 
           FROM
THE 322ND DISTRICT COURT OF TARRANT COUNTY
 
                                              ------------
 
                                             OPINION
 
                                              ------------
This case involves a suit by
a mother and presumed father to adjudicate paternity of an alleged biological
father and obtain child support more than four years after the child=s birth.  The trial court
granted summary judgment in favor of the alleged biological father on statute
of limitations grounds.  In two issues,
appellants Anne and Curtis P. challenge the summary judgment on the ground that
family code section 160.607(a), which provides that a suit to adjudicate
paternity of a child with a presumed father must be brought within four years
of the date of the child=s birth, is
an impermissible retroactive law.  Tex. Fam. Code Ann. ' 160.607(a) (Vernon Supp. 2004-05). 
We affirm.




Background Facts
K.N.P. was born on February
29, 1992.  At the time, Anne, K.N.P.=s biological mother, was married to Curtis,[1]
who is K.N.P.=s presumed
father.[2]  Anne and Curtis knew when Anne became
pregnant with K.N.P. that she was probably not Curtis=s child because Curtis had undergone a vasectomy.[3]  Anne and Curtis initially planned to divorce
but reconciled shortly after K.N.P. was born. 
When Anne and Curtis learned
she was pregnant, they told appellee William, K.N.P.=s alleged biological father. 
According to Anne, William acknowledged his probable paternity and paid
her $600 per month for about 10 months while she was pregnant and for a short
time after K.N.P. was born.  William did
not pay for any prenatal care or childbirth expenses, other than to perform an
initial pregnancy test in his office. 
William stopped paying the $600 when Anne and Curtis reconciled.




In June 2003, Anne was having
financial difficulty and asked William for money for K.N.P.  He gave her $2,000.  In November 2003, he gave her $200 for
Christmas presents for K.N.P.  According
to Anne, he has not paid her any additional support.  
Appellants raised K.N.P. as
their daughter and gave her their last name.[4]  K.N.P. was unaware that Curtis was not her
father until after appellants learned the results of the genetic testing in
this case.  According to Anne, William
has Ashown virtually no interest in [K.N.P.] . . . and has not sought any
contact with her.@
When K.N.P. was nearly twelve
years old, in January 2004, Anne and Curtis filed suit against William seeking
to adjudicate William as K.N.P.=s biological father and seeking future and retroactive child support
and reimbursement of prenatal and childbirth expenses.  They also sought to be named joint managing
conservators of K.N.P.  William filed a
motion for summary judgment on May 11, 2004, contending that appellants= suit was barred by the four-year statute of limitations set forth in
family code section 160.607(a).  The
trial court granted his motion on October 21, 2004.
 




Is Family Code Section
160.607(a) an Impermissible Retroactive Law?
In their first issue,
appellants contend that the statute of limitations in section 160.607(a), as
applied to bar their claim, constitutes an impermissible retroactive law.  Id. 
In their second issue, they contend that their suit was timely because
it was filed within four years after the effective date of section
160.607(a).  Id.
Article I, section 16 of the
Texas Constitution provides that A[n]o bill of attainder, ex post facto law, retroactive law, or any law
impairing the obligation of contracts, shall be made.@  Tex. Const. art. I, ' 16.  It is well settled that Alaws may not operate retroactively to deprive or impair vested
substantive rights acquired under existing laws, or create new obligations,
impose new duties, or adopt new disabilities in respect to transactions or
considerations past.@  Tarrant County v. Coyel, 124 S.W.3d
268, 271 (Tex. App.CFort Worth
2003, pet. denied).  On the other hand,
no litigant has a vested right in a statute or rule that is remedial or
procedural in nature and that affects no vested substantive right.  Subaru of Am., Inc. v. David McDavid
Nissan, Inc., 84 S.W.3d 212, 219 (Tex. 2002); Coyel, 124 S.W.3d at
271. 




The prohibition against
retroactive laws derives largely from the sentiment that such laws unfairly
deprive people of legitimate expectations. 
Owens Corning v. Carter, 997 S.W.2d 560, 572 (Tex. 1999) (citing Landgraf
v. USI Film Prods., 511 U.S. 244, 265, 114 S. Ct. 1483, 1496-97
(1994)).  Considerations of fair notice,
reasonable reliance, and settled expectations play a prominent role when a
state legislature shortens an existing statute of limitations for causes of
action arising in that state or when it creates an immunity where none existed
before, thereby disrupting settled expectations and extinguishing accrued
causes of action.  Id. at 572-73.
Because statutes of
limitations are procedural, they generally apply retroactively.  Baker Hughes, Inc. v. Keco R. & D.,
Inc., 12 S.W.3d 1, 4 (Tex. 1999); Attorney Gen. v. Redding, 60
S.W.3d 891, 893 (Tex. App.CDallas 2001, no pet.).  However,
a statute of limitations will not be given retroactive effect if to do so would
destroy or impair rights that vested before the effective date of the
statute.  Redding, 60 S.W.3d at
893; see Baker Hughes, 12 S.W.3d at 4.[5]





The legislature can pass
legislation affecting a remedy for an accrued cause of action without violating
article I, section 16 if it affords a reasonable time or fair opportunity to
preserve a claimant=s rights
under the former law.  Owens Corning,
997 S.W.2d at 572; City of Tyler v. Likes, 962 S.W.2d 489, 502 (Tex.
1997).  When the legislature shortens an
existing statute of limitations or creates one where none had existed, it must
provide a reasonable time for plaintiffs to bring suit after the enactment of
the new law, a grace period.  Owens
Corning, 997 S.W.2d at 572; Wright v. Hardie, 88 Tex. 653, 32 S.W.
885, 886 (1895) (AThe
legislature may provide a shorter period of limitation for existing causes of
action.  It may make a statute of
limitation for causes when none existed before, but it cannot, by so
abbreviating the time in which suit must be brought, take away the right of
action altogether.  It must allow a
reasonable time after the law goes into effect to bring suit upon actions which
are not then barred.@).







The legislature enacted
section 160.607(a) in 2001 as part of Texas=s codification of the Uniform Parentage Act.[6]  Section 160.607(a) requires that a suit to
establish parentage on behalf of a child with a presumed father be brought no
later than the child=s fourth
birthday.  Tex. Fam. Code Ann. ' 160.607(a).  The enacting
language states that section 160.607(a) Aapplies to a motion or other request for relief made in a parentage or
paternity proceeding that is commenced on or after the effective date of this
Act [June 14, 2001].@[7]        The statutes in effect from the time that K.N.P. was born in
1992 until June 14, 2001 allowed a mother, a presumed father, or both to bring
a suit disputing the presumed father=s paternity and attempting to adjudicate an alleged biological father=s paternity until the second anniversary of the day the child became
an adult, generally age twenty.[8]  Thus, until section 160.607(a) became
effective, June 14, 2001, Anne and Curtis had the expectation that they could
bring their claims at any time until K.N.P.=s twentieth birthday on February 29, 2012.  But under the revised statute their suit was
immediately barred altogether on June 14, 2001, whereas under the prior statute
they would have had approximately eight[9]
more years to bring their suit against William. 
We hold that the statute did not provide a reasonable time for appellants
to bring suit after enactment of the new law and therefore violated article I,
section 16 of the Texas Constitution.[10]  We sustain appellants= first issue.
Did Appellants Pursue Their
Cause of Action Within a Reasonable Time?
Having determined that
section 160.607(a) did not provide a reasonable time for plaintiffs to bring
suit after its enactment, we must next decide whether appellants= suit was filed within a reasonable time after the effective date of
section 160.607(a).  In Wright v.
Hardie, our supreme court held that 
[w]here
the time [to file suit] has been shortened, and the statute has been running
against the cause of action, at the time the new statute takes effect, the rule
adopted by the decisions of this court has been to apply absolutely neither the
old law nor the new, but to allow such proportion of the unexpired period
under the old statute as the time prescribed by it bears to the period limited
by the new.   
 




32 S.W. at 886 (emphasis added); see Garcia
v. Vasquez, 621 S.W.2d 425, 426 (Tex. Civ. App.CSan Antonio 1981, no writ).  For
example, if under the old law, two‑thirds of the time had expired, then
one‑third of the limitations period established by the new law would be
allowed within which to sue.  Odum v.
Garner, 86 Tex. 374, 25 S.W. 18, 19 (1894).




Here, nine years and three
monthsCapproximately 46% of the former limitations periodChad expired when appellants filed suit against William; thus,
appellants had approximately ten years and nine monthsCapproximately 54% of the former limitations periodCremaining to file suit under the former law.  Applying the rule as set forth in Wright
and Odum, a reasonable, proportionate time for them to file suit under
section 160.607(a) would be 54% of four years, approximately two years and two
months after the effective date of the statute, or until mid-August 2003.[11]  Adding that to the time elapsed under the
prior law, appellants had approximately eleven years and five months after
K.N.P.=s birth to file a suit seeking to deny Curtis=s paternity and establish William=s.  Appellants did not file suit
until January 2004, nearly twelve years later; thus, we hold that they did not
file their suit within a reasonable time after the enactment of section
160.607(a).  We overrule appellant=s second issue.
Conclusion
Although we have determined
that section 160.607(a)=s four-year
limitations period violated article 1, section 16 of the Texas Constitution by
not providing appellants a reasonable time to preserve their claims against
William, we do not believe that appellants pursued those claims within a
reasonable time after the statute was enacted. 
Consequently, we affirm the trial court=s judgment.
 
 
TERRIE LIVINGSTON
JUSTICE
 
PANEL B:   LIVINGSTON, DAUPHINOT, and MCCOY, JJ.
 
DELIVERED:   November 10, 2005




[1]Anne
and Curtis were still married when they filed suit and when the trial court
rendered summary judgment.


[2]None
of the parties dispute this status.


[3]Most
of the factual background about the relationship among the parties is contained
in an uncontroverted affidavit by Anne that appellants filed with their
response to appellee William P.=s motion for summary
judgment.  Although William objected to the
evidence as being untimely filed, he did not object to the content.


[4]In
their petition, appellants asked that K.N.P.=s last name remain the same
as theirs.


[5]A
defendant=s
right to rely on a statute of limitations vests when the limitations period
expires.  Redding, 60 S.W.3d at
893; see Baker Hughes, 12 S.W.3d at 4.


[6]Act
of May 25, 2001, 77th Leg., R.S., ch. 821, ' 1.01, 2001 Tex. Gen. Laws
1610, 1621; see Tex. Fam. Code
Ann. '
160.101 (Vernon 2002); In re R.A.H., 130 S.W.3d 68, 69 (Tex. 2004).


[7]Act
of May 25, 2001, 77th Leg., R.S., ch. 821, '' 3.01-.02, 2001 Tex. Gen.
Laws 1610, 1642; In re R.A.H., 130 S.W.3d at 69.


[8]See Act
of May 30, 1983, 68th Leg., R.S., ch. 424, ' 7, 1983 Tex. Gen. Laws 2346,
2355 (allowing presumed father to bring suit denying paternity), repealed by
Act of May 25, 2001, 77th Leg., R.S., ch. 821, '
1.01, 2001 Tex. Gen. Laws 1610, 1626; Act of May 28, 1987, 70th Leg., R.S., ch.
689, ' 5,
1987 Tex. Gen. Laws 2546, 2548 (allowing mother to bring suit denying paternity
of presumed father), repealed by Act of May 25, 2001, 77th Leg., R.S.,
ch. 821, '
1.01, 2001 Tex. Gen. Laws 1610, 1626 (amended 2003); Act of May 24, 1983, 68th
Leg., R.S., ch. 744, ' 1,
1983 Tex. Gen. Laws 4530, 4531 (providing that suit to determine parentage
barred after second anniversary of day child becomes adult), repealed by
Act of May 25, 2001, 77th Leg., R.S., ch. 821, '
1.01, 2001 Tex. Gen. Laws 1610, 1626; Attorney Gen. v. Lavan, 833 S.W.2d
952, 954 (Tex. 1992) (holding that claims to disestablish paternity of presumed
father under former family code section 12.06 and to establish paternity of
alleged biological father under former family code section 13.01 could be
brought together in one suit).  


[9]K.N.P.
turned twelve approximately one month after appellants filed suit against
William.


[10]In Likes,
the Texas supreme court held that the time between enactment of a new law and
its effective date, approximately three months, was a reasonable time for the
litigant in that case to preserve her rights. 
962 S.W.2d at 502.  Here, however,
the time between enactment of section 160.607(a) and its effective date was
only twenty days.  
 


[11]This
exceeds the one-year limitations period previously rejected by the United
States Supreme Court as an unreasonable amount of time for a child with no
presumed or adjudicated father to sue for an adjudication of parentage, Mills
v. Habluetzel, 456 U.S. 91, 101, 102 S. Ct. 1549, 1555-56 (1982), and the
two-year period adopted by the drafters of the Uniform Parentage Act, see In
re R.O., No. 03-04-00506-CV, 2005 WL 910231, at *4 (Tex. App.CAustin
Apr. 21, 2005, no pet.) (mem. op.).


