                                   NO. 12-12-00106-CV

                       IN THE COURT OF APPEALS

               TWELFTH COURT OF APPEALS DISTRICT

                                    TYLER, TEXAS

IN THE INTEREST                                 §           APPEAL FROM THE 321ST

OF C.B.B.,                                      §           JUDICIAL DISTRICT COURT

A CHILD                                        §            SMITH COUNTY, TEXAS

                                   MEMORANDUM OPINION
       Blake Bennett Bullard appeals the trial court’s order that he submit to genetic testing in
the paternity suit filed by the Office of the Texas Attorney General (OAG). We dismiss the
appeal for want of jurisdiction.


                                         BACKGROUND
       On October 15, 2010, the OAG filed an original petition to establish a parent-child
relationship between Bullard and C.B.B., who was born on December 24, 2006. The OAG
alleged that there was no presumed father. Bullard filed an answer in which he urged a defect in
parties because C.B.B. was born during his mother’s marriage to Dustin Cole Frank, but Frank
had not been joined in the suit. After an evidentiary hearing on April 4, 2011, the trial court
found that Frank was the presumed father of C.B.B. and was a necessary party to the litigation.
On May 5, 2011, the OAG amended its petition to name Frank as the presumed father and join
him as a party to the suit. However, the OAG specifically denied that Frank is the biological
father of C.B.B. Frank was served with citation, but did not make an appearance.
       Bullard filed a motion for summary judgment in which he argued that the four year
statute of limitations had run before the joinder of the presumed father, and that the OAG was
estopped from seeking genetic testing because it had taken a contrary position in prior cases with
similar facts. The OAG filed a response to which was attached an affidavit from C.B.B.’s
mother providing information pertaining to Bullard’s limitations argument.              Bullard filed
objections to the affidavit and requested a hearing on both the objections and the motion for
summary judgment. The trial court held the requested hearing, and denied Bullard’s motion for
summary judgment. The court did not rule on Bullard’s objections to the OAG’s summary
judgment evidence.
         After a hearing on the OAG’s pleadings, the trial court signed the order for genetic
testing. Later, the OAG filed a notice of nonsuit, and Bullard timely filed a notice of appeal.


                                            JURISDICTION
         In his sole issue, Bullard contends that the trial court reversibly erred by abusing its
discretion in ordering genetic testing. He also argues preemptively that this court has jurisdiction
of his appeal. The OAG disagrees. Because jurisdiction is a threshold issue, we will address it
first.
Effect of Nonsuit
         Under Texas law, parties have an absolute right to nonsuit their own claims for relief at
any time during the litigation until they have introduced all evidence at trial other than rebuttal
evidence. TEX. R. CIV. P. 162; Villafani v. Trejo, 251 S.W.3d 466, 468-69 (Tex. 2008). A
nonsuit is not an adjudication of the rights of the parties and does not extend to the merits of the
action. Waterman Steamship Corp. v. Ruiz, 355 S.W.3d 387, 399 (Tex. App.–Houston [1st
Dist.], pet. denied). Therefore, subject to certain conditions, a plaintiff who takes a nonsuit is not
precluded from filing a subsequent suit seeking the same relief. Aetna Cas. & Sur. Co. v.
Specia, 849 S.W.2d 805, 806 (Tex. 1993) (orig. proceeding).
         One unique effect of a nonsuit is that it can vitiate earlier interlocutory orders, rendering
them moot and unappealable. Villafani, 251 S.W.3d at 469. However, a decision on the merits
is not vitiated. Hyundai Motor Co. v. Alvarado, 892 S.W.2d 853, 855 (Tex. 1995) (per curiam).
“Once a judge announces a decision that adjudicates a claim, that claim is no longer subject to
the plaintiff’s right to nonsuit.” Id. Other than this exception, the nonsuit puts the parties back
in the position they were in before the lawsuit was brought. See Waterman, 355 S.W.3d at 399.
The Case at Hand
         Bullard challenges the trial court’s order for genetic testing–a nonappealable
interlocutory order. See In re Attorney Gen. of Tex., No. 03-06-00307-CV, 2006 WL 6234637,



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at *3 (Tex. App.–Austin Aug. 3, 2006, orig. proceeding) (mem. op.). Because the order is
interlocutory, it was vitiated by the OAG’s nonsuit unless it constitutes a decision “on the
merits.” See Hyundai, 82 S.W.2d at 855. In the context of this case, “merits” means “the
elements or grounds of a claim or defense; the substantive considerations to be taken into
account in deciding a case, as opposed to extraneous or technical points.” See BLACK’S LAW
DICTIONARY 860 (8th ed. 2004). For example, a party seeking to recover upon a “claim,
counterclaim, or cross-claim or to obtain a declaratory judgment” may move for a summary
judgment in his favor “upon all or any part thereof.” TEX. R. CIV. P. 166a(a). Accordingly, a
summary judgment and a partial summary judgment not set aside by the trial judge are decisions
on the merits.1 See Hyundai, 892 S.W.2d at 854.
         Bullard pleaded in his answer, as an affirmative defense, that a father-child relationship
has already been established because Dustin Cole Frank is C.B.B.’s presumed father. See TEX.
FAM. CODE ANN. § 160.204(a)(1) (West 2008) (“A man is presumed to be the father of a child if
[] he is married to the mother of the child and the child is born during the marriage[.]”). He also
pleaded that the OAG’s claims are barred by the four year statute of limitations that applies to
the adjudication of parentage of children with presumed fathers. See TEX. FAM. CODE ANN.
§ 160.607(a) (West Supp. 2012).2 In addition, he filed a motion for summary judgment on the
limitations issue, which the trial court denied.
         Bullard argues on appeal that the trial court’s order for genetic testing is based upon an
implied finding that the presumption that Frank is C.B.B.’s father has been “factually rebutted.”
He contends that “[t]he trial court had to necessarily make such a finding, directly or implicitly,
in order to require genetic testing of Bullard.” He implies that this conclusion logically follows
         1
           In his brief, Bullard characterizes a venue ruling as a decision on the merits and states that it is not vitiated
by a nonsuit. We agree that a venue ruling is not vitiated by a nonsuit. In re Team Rocket, L.P., 256 S.W.3d 257,
259 (Tex. 2008) (orig. proceeding). But the court did not characterize a venue ruling as a decision on the merits.
See id. at 260 (“Just as a decision on the merits cannot be circumvented by nonsuiting and refiling the case, a final
determination fixing venue in a particular county must likewise be protected from relitigation.”). Instead, it
concluded that Texas Rule of Civil Procedure 87 permits only one venue determination. Id.
         2
            Except as otherwise provided in family code subsection 160.607(b), a proceeding to adjudicate the
parentage of a child having a presumed father 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) (West Supp. 2012). The version of subsection (b) that
was in effect at the time the OAG filed suit provided that a proceeding 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. Act of June 20, 2003, 78th Leg., R.S., ch. 1248, 2003 Tex. Gen. Laws 3537 (amended 2011) (current version
at TEX. FAM. CODE ANN. § 160.607(b) (West Supp. 2012)).


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from the trial court’s denial of his motion for summary judgment on the limitations issue.
Bullard relies, in part, on the presumption of paternity to establish his affirmative defense.
Accordingly, he urges that the trial court’s implied finding that the presumption of paternity has
been “factually rebutted” is a decision on the merits and therefore is not vitiated by the OAG’s
nonsuit.
Analysis
       A presumed father is recognized as the father of a child until that status is rebutted or
confirmed in a judicial proceeding. TEX. FAM. CODE ANN. § 160.102(13) (West 2008). The
presumption of paternity may be rebutted only by (1) an adjudication of the parentage of the
child under Subchapter G of the family code or (2) the filing of a valid denial of paternity by a
presumed father in conjunction with the filing by another person of a valid acknowledgment of
paternity as provided by Texas Family Code Section 160.305. Id. § 160.204(b) (West 2008).
Moreover, the paternity of a child having a presumed father may be disproved only by
admissible results of genetic testing excluding that man as the father of the child or identifying
another man as the father of the child. Id. § 160.631(b) (West 2008). As a general rule, a court
must order genetic testing upon the request of a party to a proceeding to determine parentage.
Id. § 160.502(a) (West 2008). The court may order genetic testing of the child and each man
whose paternity is being adjudicated. Id. § 160.622(c) (West 2008).
       In this case, the trial court denied Bullard’s motion for summary judgment on limitations.
The OAG sought to disprove the presumed father’s paternity as well as establish a parent-child
relationship between Bullard and C.B.B. Therefore, genetic testing was necessary. See id.
§ 160.631(b) (genetic testing required to disprove paternity of presumed father). The OAG was
not required to rebut the presumption of paternity to obtain this testing, and the family code
makes no provision for a “factual rebuttal” of the presumption in connection with a request for
genetic testing. See id. §§ 160.501-.511 (West 2008 & Supp. 2012) (Subchapter F pertaining to
genetic testing); id. § 160.608 (West Supp. 2012) (specifying circumstances under which trial
court may deny motion for genetic testing of mother, child, and presumed father); see also id.
§ 160.204(b) (providing that presumption of paternity can be rebutted only by adjudication of
paternity or filing valid denial of paternity by presumed father along with filing by another
person of valid acknowledgment of paternity). Therefore, a ruling on a request for genetic
testing is not a ruling on whether the presumption of paternity has been rebutted. See id.



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§ 160.204(b). Consequently, the trial court’s order does not dispose of a ground of Bullard’s
defense and, thus, is not a decision on the merits.


                                                   CONCLUSION
         Because the order for parentage testing is not a decision on the merits, it was vitiated by
the OAG’s nonsuit. Therefore, the order is moot and unappealable. See Villafani, 251 S.W.3d
at 469. Accordingly, we dismiss the appeal for want of jurisdiction. See Kilroy v. Kilroy, 137
S.W.3d 780, 783 (Tex. App.–Houston [1st Dist.] 2004, no pet.) (holding that after concluding it
has no jurisdiction, appellate court can only dismiss appeal). All pending motions are dismissed
as moot.


                                                                JAMES T. WORTHEN
                                                                  Chief Justice



Opinion delivered March 13, 2013.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle




                                                    (PUBLISH)




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                                 COURT OF APPEALS
      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
                                          JUDGMENT

                                          MARCH 13, 2013


                                        NO. 12-12-00106-CV


                          IN THE INTEREST OF C.B.B., A CHILD

                          Appeal from the 321st Judicial District Court
                         of Smith County, Texas. (Tr.Ct.No. 10-2944-D)

                      THIS CAUSE came to be heard on the appellate record; and the same
being considered, it is the opinion of this court that this court is without jurisdiction of the
appeal, and that the appeal should be dismissed.
                      It is therefore ORDERED, ADJUDGED and DECREED by this court that
this appeal be, and the same is, hereby dismissed for want of jurisdiction; and that this decision
be certified to the court below for observance.
                      James T. Worthen, Chief Justice.
                      Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




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