

 











 
 
 
 
                                   NUMBER
13-01-079-CV
 
                             COURT OF APPEALS
 
                   THIRTEENTH DISTRICT OF TEXAS
 
                                CORPUS CHRISTI
 
 
                          IN THE INTEREST OF
D.J.D, A CHILD  
 
 
  On appeal from the 411th District Court of San
Jacinto County, Texas.
 
 
                                   O P I N I O N
 
                    Before Justices Dorsey, Hinojosa,
and Wittig[1]
                                   Opinion by
Justice Wittig
 
 Appellant, David Gilliland, filed an action to
modify the managing conservatorship of the minor, D.J.D.  The trial court granted appellee=s plea in
abatement.  Gilliland contends the grant
of this plea denied him the right to due process under the Texas
Constitution.  We affirm.
                                                      Background




This action is
the third in a series of lawsuits filed by Gilliland.  In June 1999, Gilliland filed a petition to
establish paternity of a child.  A plea
in abatement was filed and the trial court dismissed the case.  In January, 2000, Gilliland filed a bill of
review, claiming he was not informed of the hearing or dismissal in his earlier
suit to establish paternity.  The bill of
review was denied in March, 2000, and no appeal was taken.  
In August,
2000, Gilliland filed this suit to modify the conservatorship of D.J.D.  After a hearing in December, 2000, the trial
court granted appellee=s plea in
abatement and dismissed Gilliland=s motion to
modify with prejudice.   This appeal followed.
                                                      Discussion
Gilliland
contends he was denied due process under the Texas Constitution because he was
not given a hearing on paternity. 
Article I, section 19 of the Texas Constitution states that: ANo citizen of
this State shall be deprived of life, liberty, property, privileges or
immunities, or in any manner disfranchised, except by the due course of the law
of the land.@  Tex.
Const. art. I, ' 19. 




To support his
argument, Gilliland relies entirely upon In the Interest of J.W.T., 872
S.W.2d 189 (Tex. 1994).  In J.W.T.,
a divided supreme court held the Texas Constitution does not guarantee every
natural father ties with his illegitimate offspring.  Id. at 198.  Rather, the court held standing may be
constitutionally mandated under some defining circumstances.  Id. at 195.  These defining circumstances may occur when
the putative father: (1) asserts his interest near the time of the child=s birth; (2)
acknowledges responsibility for child support or other care and maintenance;
and (3) makes serious and continuous efforts to establish a relationship with
the child.[2]  Id. 

The alleged
biological father in J.W.T., Larry G., provided proof through scientific
testing, showing a 99.4% probability he was the father.  Id. at 190.  Larry G. arranged for prenatal care, and
brought suit to establish paternity before the child was born.   Id. at 189.  Larry G. acknowledged responsibility for
child support, sought visitation rights and, after the birth, sought to
maintain contact with the child.  Id.
at 189-190.  By contrast, Gilliland filed
his claim almost twelve years after the birth of D.J.D.  His claim is unsupported by scientific proof,
although he requests DNA testing.  Except
for a brief interlude, Gilliland failed to show attempts to maintain contact
with the child and demonstrates no care or support of D.J.D.   For these reasons, we hold Gilliland has not
shown his interest is  constitutionally
protected.




Appellee also
argues Gilliland has no standing to seek modification because he was not a
party to the order he sought to modify.  See
Doe v. Roe, 600 S.W.2d 378, 379-80 (Tex. Civ. App.BEastland 1980,
writ ref=d n.r.e.).   Doe held a person who was not a
"party affected" by the original lawsuit in which custody was
determined is without standing to bring proceedings under section 14.08 of the
Texas Family Code.  Id.  Section 14.08(a) is now section
156.002(a).  See Tex. Fam. Code Ann. ' 156.002(a)
(Vernon 1996); Kirby v. Chapman, 917 S.W.2d 902, 915 (Tex. Civ. App.BFort Worth
1996, no writ).  In 1996, section
156.002(b) was broadened to provide standing to sue for modification to anyone
or entity who, at the time of filing, has standing under Chapter 102.[3]  Tex.
Fam. Code Ann. ' 156.002(b)
(Vernon 1996).
Gilliland=s paternity
claim was dismissed by the trial court. 
His subsequent bill of review was also determined adversely to him.  Gilliland took no appeal from these adverse
judgments.  Gilliland lost his suits
under section 156.002(b), and he is not a Aparty affected
by an order@ under section
156.002(a).  Doe, 600
S.W.2d at 379-80.
         Finally, we note that ordinarily a
plea in bar or limitations issue should be disposed of by a motion for summary
judgment or trial.  Tex. R. Civ. P. 94, 166a; In the
Interest of  A.M., 936 S.W.2d 59, 63
(Tex. App.BSan Antonio
1996, no writ).  Gilliland did not object
to the trial court=s
procedure.  Gilliland appeared at the
hearing with his attorney and actively participated in argument to the
court.  The purpose of the hearing was
made clear on the record. At no time did Gilliland object that summary judgment
was the proper pre-trial procedure to dispose of this defense prior to trial. A
plea in bar may also be properly sustained at a preliminary hearing when such a
procedure is agreed to by the parties.  See
Id.  We hold any error by the trial
court was waived.  Tex. R. App. P. 33.1(a).  Gilliland=s single issue is overruled.  
Accordingly,
the judgment of the trial court is affirmed.
 
DON WITTIG
Justice
 
Publish. 
Tex. R. App. P. 47.3.
 
Opinion delivered and filed this the
20th
day of June, 2002.




[1]Retired
Justice Don Wittig assigned to this Court by the Chief Justice of the Supreme
Court of Texas pursuant to Tex. Gov=t Code Ann. '
74.003 (Vernon 1998).


[2]  These factors are
neither  inclusive nor exclusive.  But in order to show a right is
constitutionally protected, something more than an unsupported assertion of
paternity when a child is virtually twelve years old, is required.


[3]
Acts of April 20, 1995, 74th Leg., ch. 20, '
1, 1995 Tex. Gen. Laws 113, 172. 


