GRANT; and Opinion Filed August 2, 2013.




                                         S In The
                                     Court of Appeals
                              Fifth District of Texas at Dallas

                                      No. 05-13-00382-CV

                               IN RE STANLEY NGO, Relator

                      On Appeal from the 255th Judicial District Court
                                   Dallas County, Texas
                             Trial Court Cause No. 12-00021

                               MEMORANDUM OPINION
                         Before Justices O'Neill, Lang-Miers, and Evans
                                   Opinion by Justice O'Neill
       Real party in interest, Mai Tran, had an extramarital relationship with relator while she

was married to Tin Tran. On June 27, 2005, Mai gave birth to a daughter, Alexia. In January

2011, Tin filed for a divorce, which was finalized on May 5, 2011, when Alexia was five years

old. In the divorce decree, the trial court found that Tin was not Alexia’s biological father and

that no parent-child relationship existed between Tin and Alexia.

       On January 3, 2012, Mai filed a petition to adjudicate parentage in which she asked the

court to adjudicate relator as Alexia’s father. Relator’s answer raised the affirmative defense of

the statute of limitations, and Mai filed a motion for partial summary judgment on that issue.

The trial court granted the motion for partial summary judgment, and relator then filed this

original proceeding seeking a writ of mandamus. Because the trial court abused its discretion in

failing to apply the appropriate limitations period and relator has no adequate remedy by appeal,

we conditionally grant the petition for writ of mandamus. See In re Prudential Ins. Co., 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).

           A man is presumed to be a child’s father if he is married to the mother of the child and

the child is born during the marriage. TEX. FAM. CODE ANN. § 160.204 (West 2008). The family

code provides:

           (a) Except as otherwise provided by Subsection (b), a proceeding brought by a
               presumed father, the mother, or another individual to adjudicate the parentage
               of a child having a presumed father shall be commenced not later than the
               fourth anniversary of the date of the birth of the child.
           (b) A proceeding seeking to adjudicate the parentage of a child having a
               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; or
                   (2) the presumed father was precluded from commencing a proceeding to
                       adjudicate the parentage of the child before the expiration of the time
                       prescribed by Subsection (a) because of the mistaken belief that he
                       was the child’s biological father based on misrepresentations that led
                       him to that conclusion. 1

TEX. FAM. CODE ANN. § 160.607 (West Supp. 2012). Tin Tran’s petition for divorce was filed

after Alexia’s fourth birthday.                    Real party in interest does not allege that § 160.204(b) is

applicable to this case. Therefore, it was error for the trial court to adjudicate Alexia’s parentage

in Tin and Mai’s divorce case.

           Because the order finding no parent-child relationship between Tin and Alexia was void,

Alexia still had a presumed father when Mai filed her lawsuit. That lawsuit was filed well after

Alexia’s fourth birthday. Therefore, it was an abuse of discretion for the trial court to grant real

party in interest’s motion for summary judgment. And as this Court has previously found, there

is no adequate remedy by appeal when a trial court fails to abide by the statute of limitations set



     1
        This version of the statute went into effect on September 1, 2011 and was in effect when Mai Tran filed her petition to adjudicate
parentage. When Tin Tran filed for divorce, section (b)(1) and (b)(2) were joined by an “and” rather than an “or,” and (b)(2) read, “the presumed
father never represented to others that the child was his own.” This difference does not affect the Court’s analysis in this case..



                                                                     –2–
forth in § 160.607. See In re Rodriguez, 248 S.W.3d 444, 454 (Tex. App.—Dallas 2008, orig.

proceeding) (“The purpose of the time limitation for bringing a proceeding to determine

parentage when a child has a presumed father is to protect the family unit.”).

       Accordingly, we conditionally grant relator’s petition for writ of mandamus. The writ

will issue only in the event the trial court fails to vacate its March 5, 2013 order granting motion

for partial summary judgment.




                                                      /Michael J. O'Neill/
                                                      MICHAEL J. O'NEILL
                                                      JUSTICE


130382F.P05




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