                                 Fourth Court of Appeals
                                         San Antonio, Texas

                                                  OPINION
                                             No. 04-15-00244-CV

                                        IN RE Sandra SANDOVAL

                                      Original Mandamus Proceeding 1

Opinion by:       Jason Pulliam, Justice

Sitting:          Karen Angelini, Justice
                  Marialyn Barnard, Justice
                  Jason Pulliam, Justice

Delivered and Filed: August 12, 2015

PETITION FOR WRIT OF MANDAMUS CONDITIONALLY GRANTED

           On April 23, 2015, relator Sandra Sandoval filed a petition for writ of mandamus,

complaining of the trial court’s order denying her plea to the jurisdiction in the underlying suit to

adjudicate parentage. We conclude the trial court’s order constitutes an abuse of discretion for

which Sandoval would have no adequate remedy by appeal. See In re Prudential Ins. Co. of Am.,

148 S.W.3d 124, 135-36 (Tex. 2004) (orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 839-

40 (Tex. 1992) (orig. proceeding). Therefore, we conditionally grant mandamus relief.

                                               BACKGROUND

           In 2002, Sandra Sandoval adopted a baby, N.I.V.S., shortly after birth. Two years later, she

adopted a second baby, M.C.V.S. The parental rights of the biological parents were terminated and



1
 This proceeding arises out of Cause No. 2015-CI-04420, styled In the Interest of N.I.V.S. and M.C.V.S., Minor
Children, pending in the 224th Judicial District Court, Bexar County, Texas, the Honorable Gloria Saldaña presiding.
                                                                                                     04-15-00244-CV


Sandoval adopted the children by herself. At the time of both adoptions, Sandoval was in a

romantic relationship with Dino Villarreal, the real party in interest in this original proceeding.

         Dino was born a female, named Diana, but was raised as a boy and has self-identified as a

male for all of his adult life. Dino moved in with Sandoval in 1994 and lived with her, and later

the two children, until January 2011 when Dino and Sandoval separated.

         In December 2013, Dino filed a petition to adjudicate parentage and a motion for temporary

orders, after Sandoval allegedly refused to allow any further contact between Dino and the

children. 2 On January 3, 2014, in a separate cause of action, Dino obtained an Order Granting

Change of Identity, which acknowledged his name change from Diana to Dino 3, and included the

following finding: “3. Petitioner’s sex is male.” Following the trial court’s findings, the order

concluded, “IT IS ORDERED that Petitioner’s identity is changed from female to male.” 4

         Sandoval filed a plea to the jurisdiction in Dino’s suit to adjudicate parentage, challenging

Dino’s standing to maintain the suit. The trial court granted Sandoval’s plea to the jurisdiction,

finding that Dino lacked standing to bring a suit to adjudicate parentage and lacked standing to

seek conservatorship, possession and access to the children. Dino appealed and this court affirmed

the trial court’s judgment granting Sandoval’s plea to the jurisdiction on March 11, 2015. In the

Interest of N.I.V.S., No. 04-14-00108-CV, 2015 WL 1120913, at *1 (Tex. App.—Mar. 11, 2015,

no pet.).

         Five days after this court issued its opinion, Dino filed a second suit to adjudicate

parentage. In his petition, Dino asserts that he has statutory standing to bring suit as, “a man




2
  This suit was filed on December 9, 2013, in Cause No. 2013-CI-20008, styled In the Interest of N.I.V.S. and M.C.V.S.,
Minor Children, in the 57th Judicial District Court, Bexar County, Texas.
3
  Dino had previously obtained an order granting his name change in November 2013.
4
  The Order Granting Change of Identity was signed in Cause No. 2013-CI-20403, styled In the Interest of Dino
Villarreal, An Adult, filed in the 407th Judicial District Court, Bexar County, Texas.

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alleging himself to be the father of the minor children.” See TEX. FAM. CODE ANN. § 102.003(a)(8)

(West 2014). Dino requested, among other things, temporary orders appointing him a joint

managing conservator of the two minor children, and equal periods of possession and access with

Sandoval.

        Sandoval again filed a plea to the jurisdiction challenging Dino’s standing to bring suit.

The trial court signed an order on April 17, 2015, denying Sandoval’s plea to the jurisdiction, as

well as her request for genetic testing and motion for sanctions. The trial court then proceeded to

a hearing on temporary orders, eventually allowing Dino possession and access to the minor

children, appointing an amicus attorney, and enjoining the parties from initiating any proceedings

for the adoption of the children by any party.

        Sandoval filed this original proceeding challenging the trial court’s order denying her plea

to the jurisdiction.

                                           ANALYSIS

        The improper denial of a plea to the jurisdiction is generally not reviewable by mandamus

because it involves a question of law which can be addressed by ordinary appeal. See In re State

Bar of Tex., 113 S.W.3d 730, 734 (Tex. 2003) (orig. proceeding). The Texas Supreme Court has

held, however, that mandamus review is appropriate when there is a jurisdictional dispute in a

proceeding involving child custody issues. See Geary v. Peavy, 878 S.W.2d 602, 603 (Tex. 1994)

(orig. proceeding); In re Green, 352 S.W.3d 772, 774 (Tex. App.—San Antonio 2011, orig.

proceeding). This is due to the unique and compelling circumstances presented when the trial court

decides issues of child custody. See Geary, 878 S.W.2d at 603. A party’s standing to maintain suit

is an implicit component of the court’s subject matter jurisdiction. Tex. Ass’n of Bus. v. Tex. Air

Control Bd., 852 S.W.2d 440, 443 (Tex. 1993). A party’s lack of standing deprives the court of

subject matter jurisdiction and renders subsequent trial court action void. See id. Whether a trial
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court has subject matter jurisdiction is a question of law we review de novo. See Mayhew v. Town

of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998).

       The Texas Legislature has established a comprehensive statutory framework applicable to

suits affecting the parent-child relationship. See TEX. FAM. CODE ANN. §§ 102.003-.006 (West

2014). Standing to file suit under the Texas Family Code is limited. In his second petition to

adjudicate parentage, Dino asserts that he has statutory standing to maintain his suit under section

102.003(a)(8) of the Texas Family Code, which provides:

       (a) An original suit may be filed at any time by:
       ...
       (8) a man alleging himself to be the father of a child filing in accordance with
       Chapter 160, subject to the limitations of that chapter, but not otherwise;. . . .

TEX. FAM. CODE ANN. § 102.003(a)(8).

       Standing to file a suit to adjudicate parentage under Chapter 160 of the Family Code is also

expressly limited. Such a suit may only be maintained by:

       (1) the child;
       (2) the child’s mother;
       (3) “a man whose paternity of the child is to be adjudicated;”
       (4) an authorized governmental agency;
       (5) an adoption or child-placing agency;
       (6) a legal representative of an authorized individual who is incapacitated;
       (7) a relative of the mother if the mother is deceased; or
       (8) an intended parent under a gestational agreement.

TEX. FAM. CODE ANN. § 160.602(a)(3) (West 2014) (emphasis added).

       As this court stated in affirming the trial court’s dismissal of Dino’s first suit on the basis

of standing:

       “Standing must exist at the time a plaintiff files suit and must continue to exist
       between the parties at every stage of the legal proceedings, including the appeal; if
       the plaintiff lacks standing at the time suit is filed, the case must be dismissed, even
       if the plaintiff later acquires an interest sufficient to support standing.” La Tierra de
       Simmons Familia, Ltd. v. Main Event Entm’t, L.P., 03-10-00503-CV, 2012 WL
       753184, at *4 (Tex. App.—Austin Mar. 9, 2012, pet. denied) (mem. op.) (citing, in
       part, Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 n.9 (Tex.
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         1993)); Martin v. Clinical Pathology Labs., Inc., 343 S.W.3d 885, 888 (Tex. App.—
         Dallas 2011, pet. denied).

In the Interest of N.I.V.S., 2015 WL 1120913, at *2.

         This court concluded that Dino did not have standing to bring his first suit under subsection

102.003(a)(8) because he was not a man at the time he filed his suit. Id. at *5.

         Dino contends in this mandamus proceeding, as he did in the trial court when opposing

Sandoval’s plea to the jurisdiction, that because the Order Granting Change of Identity, signed on

January 3, 2014, was in place prior to his filing the second suit to adjudicate parentage, he now

has standing to maintain suit. Dino contends that his Order Granting Change of Identity is legally

sufficient to confer statutory standing to adjudicate his legal paternity to Sandoval’s adopted

children under subsection 160.602(a)(3). We disagree.

         The Legislature amended the Family Code in 2009 to add a provision which allows a court

order relating to an individual’s sex change as an acceptable form of identification to establish a

person’s identity and age for the purpose of obtaining a marriage license. See TEX. FAM. CODE

ANN. § 2.005(b)(8) (West Supp. 2014). The family code contains no further provision defining the

terms used in this subsection, and offers no rules or standards with respect to its application. See

In re Estate of Araguz, 443 S.W.3d 233, 245 (Tex. App.—Corpus Christi 2014, pet. filed).

         The Order Granting Change of Identity was not challenged in the context of the proceeding

in which it was obtained. While the clear language of the Family Code recognizes such an order

as sufficient to provide proof of Dino’s identity and age for the purpose of obtaining a marriage

license, we conclude that it is not sufficient to confer statutory standing to maintain a suit to

adjudicate parentage under subsection 160.602(a)(3). 5 The Order Granting Change of Identity is a


5
  There is no dispute that Dino is not the biological father, nor does he qualify for statutory standing as a presumed
father, or meet the requirements to be an acknowledged father. See TEX. FAM. CODE ANN. §§ 160.102(13), 160.204(a)
(West 2014) (presumed father); TEX. FAM. CODE ANN. §§ 101.0010, 160.301 (West 2014) (acknowledged father).

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recognized form of proof of Dino’s identity and age for the purpose of obtaining a marriage license.

However, we decline to extend the applicability of subsection 2.005(b)(8) of the Family Code to

confer standing as, “a man whose paternity of the child is to be adjudicated.” TEX. FAM. CODE

ANN. § 160.602(a)(3).

                                                CONCLUSION

        Under the unique set of facts present in the case underlying this mandamus proceeding, we

conclude that the trial court abused its discretion in denying Sandoval’s plea to the jurisdiction and

Sandoval has no adequate remedy at law. Accordingly, we conditionally grant the petition for writ

of mandamus and direct the trial court to set aside its April 17, 2015 order denying the plea to the

jurisdiction and enter an order granting the plea to the jurisdiction and dismissing the lawsuit for

lack of subject matter jurisdiction. The writ will issue only if we are advised the trial court has

failed to act in accordance with this opinion.


                                                              Jason Pulliam, Justice




The only basis under which Dino attempts to assert that he qualifies as “a man whose paternity of the child is to be
adjudicated,” is under an implied equitable theory resembling the psychological parent doctrine. As this court stated
in its prior opinion, Dino does not have standing under the doctrine of in loco parentis, the common law doctrines of
unconscionability or estoppel, or the psychological parent doctrine, which has never been recognized under Texas
law. See In the Interest of N.I.V.S., 2015 WL 1120913, at *6-7.

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