Opinion issued July 11, 2019




                                     In The

                               Court of Appeals
                                    For The

                         First District of Texas
                           ————————————
                               NO. 01-17-00690-CV
                          ———————————
                  IN THE INTEREST OF J.M.G., A CHILD



               On Appeal from the County Court at Law No. 2
                         Galveston County, Texas
                     Trial Court Case No. 16FD3374


                         MEMORANDUM OPINION

      Appellant Thomas Wayne Florence appeals the trial court’s dismissal of his

suit to deny paternity of J.M.G., a minor, under chapter 160 of the Texas Family

Code, which applies to “presumed fathers.” We affirm.
                                    Background

       Florence was convicted of sexual assault of a child upon proof that he had

engaged in sexual intercourse with A.M.G. when she was 16 years old and he was

40 years old. See Florence v. State, No. 01-11-00822-CR, 2013 WL 3957696, at *1

(Tex. App.—Houston [1st Dist.] July 30, 2013, no pet.) (mem. op.; not designated

for publication). He was sentenced to 70 years in prison. Id. In 2010, A.M.G. gave

birth to J.M.G., who is the subject of this suit, and “a DNA test identified appellant

as the father of the child.” Id.

       In 2013, this court affirmed Florence’s conviction. Id. at *10. When he

failed to timely file a petition for discretionary review in the Texas Court of

Criminal Appeals, this court’s mandate issued, and the trial court’s judgment of

conviction became final. See In re Florence, No. 01-15-00295-CR, 2015 WL

2229050, at *1 (Tex. App.—Houston [1st Dist.] May 12, 2015, orig. proceeding)

(mem. op.; not designated for publication).

       In November 2016, Florence filed an original petition of denial of paternity

of J.M.G. under section 160.303 of the Texas Family Code. TEX. FAM. CODE

§ 160.303. Nobody was served with citation of this petition. Florence filed

numerous pleadings and letters with the trial court. The trial court dismissed the

case with prejudice, finding in its final judgment of dismissal that the suit was

“barred by res judicata and/or by Section 160.607 of the Texas Family Code.”


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                                       Analysis

      On appeal, Florence asserts that the court erred by dismissing the case with

prejudice. In his first issue, he argues that “structural and cumulative errors”

denied him a fair trial. He contends that the court asserted affirmative defenses on

behalf of the respondents, who were never served and who never pleaded

affirmative defenses. He argues that this showed that the court was not neutral. In

his second issue, he argues that the court erred by not rendering judgment on the

pleadings in his favor. In his third issue, he challenges the court’s failure to rule on

motions, such as his motion for a bench warrant and motions for phone

conferences. In his fourth issue, he argues that the trial court erred by failing to file

findings of fact and conclusions of law. In his fifth issue, he asserts that the court

erred by dismissing his case without further development of the facts. In his sixth

and final issue, he argues that the court committed harmful error by failing to

liberally construe his pro se pleadings. In addition, throughout his brief, he

maintains that he was wrongfully adjudicated as the father of J.M.G. in his

criminal trial, and he suggests that A.M.G. suffered a miscarriage and J.M.G. does

not exist.

      We review a trial court’s order dismissing a case with prejudice for an abuse

of discretion. See Jackson v. N. Forest Indep. Sch. Dist., No. 01-10-00010-CV,

2012 WL 246052, at *3 (Tex. App.—Houston [1st Dist.] Jan. 26, 2012, no pet.).


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      “A court abuses its discretion if it acts without reference to any guiding rules

and principles such that the ruling is arbitrary or unreasonable.” Pressley v. Casar,

567 S.W.3d 327, 333 (Tex. 2019) (per curiam); see Walker v. Packer, 827 S.W.2d

833, 839 (Tex. 1992). “We must uphold a correct lower court judgment on any

legal theory before it, even if the court gives an incorrect reason for its judgment.”

Guar. Cty. Mut. Ins. Co. v. Reyna, 709 S.W.2d 647, 648 (Tex. 1986). We will not

reverse a judgment on appeal unless we conclude that the trial court’s error

“probably caused the rendition of an improper judgment” or “probably prevented

the appellant from properly presenting the case to the court of appeals.” TEX. R.

APP. P. 44.1(a).

      A trial court may dismiss an action, before or after service of process, if the

court determines that the action is frivolous or malicious. TEX. CIV. PRAC. & REM.

CODE § 13.001(a)(2). A claim may be frivolous or malicious when its “realistic

chance of ultimate success is slight,” when it has “no arguable basis in law or fact,”

or when the party “cannot prove a set of facts in support of the claim.” Id.

§ 13.001(b).

      Florence filed suit to deny paternity of J.M.G. under section 160.303 of the

Texas Family Code, which provides that a “presumed father of a child may sign a

denial of his paternity.” TEX. FAM. CODE § 160.303. The Family Code defines a

“presumed father” as “a man who, by operation of law under Section 160.204, is


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recognized as the father of a child until that status is rebutted or confirmed in a

judicial proceeding.” Id. § 160.102(13) (defining presumed father).

      “A man is presumed to be the father of a child” in five circumstances. See id.

§ 160.204(a). Three of those circumstances require that the man be married to the

mother of the child before the child’s birth. See id. § 160.204(a)(1)–(3). The fourth

circumstance requires that the man (1) marry the mother of the child after its birth

and (2) acknowledge paternity in a “record filed with the vital statistics unit,” be

“voluntarily named” as the father on the child’s birth certificate, or “promise[] in a

record to support the child as his own.” Id. § 160.204(a)(4). The fifth circumstance

requires that, “during the first two years of the child’s life,” the man “continuously

reside[s] in the household in which the child reside[s] and he represent[s] to others

that the child [is] his own.” Id. § 160.204(a)(5).

      Florence does not fit any of those categories, so he is not the presumed

father of J.M.G. He was not married to A.M.G. before J.M.G.’s birth. See

Florence, 2013 WL 3957696, at *2 (referencing testimony from appellant’s wife,

Wanette, adduced in the criminal trial). He did not marry A.M.G. after J.M.G. was

born. He did not continuously live with A.M.G. for two years after J.M.G.’s birth,

while representing to others that he was the child’s father. See id. 2013 WL

3957696, at *1 n.1 (noting briefs filed prior to the second birthday of the child).




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      Chapter 160 of the Texas Family Code permits only a “presumed father” to

file a denial of paternity. Under the facts of this case and because appellant did not

satisfy the statutory definition of a “presumed father,” the trial court could have

reasonably concluded that appellant’s chance of success was slight, that the claim

had no arguable basis in law or in fact, and that he could not prove facts in support

of his claim because he did not qualify as a presumed father. See TEX. CIV. PRAC.

& REM. CODE § 13.001(b). We hold that the court did not abuse its discretion by

dismissing the suit with prejudice. See Jackson, 2012 WL 246052, at *3.

      To the extent that Florence challenged other interlocutory rulings of the trial

court, such as its refusal to rule on certain motions, those appellate issues are

waived. See TEX. R. APP. P. 33.1 (appellant must show that trial court ruled or

refused to rule on a motion); Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184–

85 (Tex. 1978) (pro se litigants are held to the same standards as licensed

attorneys); see also TEX. R. APP. P. 38.1(i) (“The brief must contain a clear and

concise argument for the contentions made, with appropriate citations to the

authorities and to the record.”).

      We overrule all of Florence’s issues. All pending motions are denied.




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                                   Conclusion

      We affirm the judgment of the trial court.




                                             Peter Kelly
                                             Justice

Panel consists of Justices Lloyd, Kelly, and Hightower.




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