                          COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH

                               NO. 02-15-00014-CV


IN RE S.T.

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                            ORIGINAL PROCEEDING
                        TRIAL COURT NO. 233-553020-14

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                                     OPINION

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      S.T., relator, filed a petition for writ of mandamus in this court seeking relief

from a trial court order allowing a suit to adjudicate his paternity of a child to

continue in an action joined with a pending divorce and suit affecting parent-child

relationship (SAPCR) between real parties in interest, referred to in this opinion

as Husband and Wife. The primary issue is whether S.T. has a vested right to

rely on the statute of limitations in effect at the child’s birth in February 2002 and

when the child turned four years old, or whether an exception to the statute of

limitations––which the legislature did not codify until after the former four-year
statute of limitations had run––applies.       Based on the particular facts and

circumstances of this case, we grant relief.

                                   Background

      Husband filed for divorce from Wife in March 2014.            In the petition,

Husband denied his paternity of the only child born during the marriage and

alleged that he had been precluded from challenging paternity before the statute

of limitations ran because Wife’s misrepresentations about the child’s conception

resulted in his mistaken belief that he was the child’s father.      Husband also

sought genetic testing of the child and named an unknown father as respondent.

Wife countersued for divorce and alleged that Husband’s requested relief was

barred on statute of limitations grounds. 1 See Tex. Fam. Code Ann. § 160.607

(West 2014).

      Husband subsequently filed a third party petition against S.T., the man

Husband alleged to be the child’s biological father, 2 seeking money damages in


      1
       Wife argued,

      Petitioner is the presumed father of the twelve year old child subject
      of this suit and is time barred from bringing a suit to adjudicate the
      paternity of that child. Petitioner has not met the burden required to
      maintain said suit outside the limitations period. Because Petitioner
      is not entitled to bring said suit, Petitioner cannot be a proper party,
      and he is thus not entitled to an order for genetic testing.
      2
        Husband, who filed the only response to the petition for writ of mandamus,
attached genetic testing results purporting to show that there is no possibility he
is the child’s biological father; however, relator claims these results are not part
of the trial court record. Regardless, a trial court abuses its discretion by
ordering genetic testing if the person seeking the testing is not entitled to

                                         2
“an amount equivalent to what [S.T.’s] child support obligation would have been if

he had been established as the father . . . from the time of . . . birth.” Husband

also filed a motion seeking genetic testing of S.T.

      In the meantime, Husband and Wife entered into a rule 11 agreement, in

which they agreed (1) to sever the divorce from the SAPCR, (2) that in the final

decree Husband would “be adjudicated to not be the father [of the child] and to

have no rights and no duties, including the duty of support,” and (3) that if Wife

recovered any child support from S.T., she would reimburse Husband for “1/3 of

any amount recovered . . . if, as, and when received.” S.T. filed an objection to

the rule 11 agreement; he argued that the issues in the divorce and SAPCR were

so intertwined that they could not be severed and that adjudicating Husband to

not be the child’s father in the decree violates public policy.   The trial court

suspended operation of the rule 11 agreement.

      S.T. filed a third party counterclaim for declaratory judgment, seeking to

have the trial court find that any attempt to adjudicate him as the father of the

child was barred by the four-year statute of limitations in family code section

160.607 and that Husband is the child’s presumed father. Id. §§ 160.102(13),

160.204(a)(1), 160.607 (West 2014). S.T. moved for summary judgment on his

declaratory judgment claim and on Husband’s paternity claims against him. In

maintain a suit to adjudicate paternity, such as when another party is entitled to
rely upon a statute of limitations. See In re Rodriguez, 248 S.W.3d 444, 451–52
(Tex. App.––Dallas 2008, orig. proceeding). Therefore, we will address the
limitations issue without reference to the attachments to Husband’s response.


                                         3
addition to arguing that Husband’s paternity claims were precluded by operation

of the applicable statute of limitations, S.T. also claimed that Husband could not

sue him for back child support owed to the community.

      In October 2014, the trial court granted an agreed partial summary

judgment finding that Husband was the child’s presumed father “unless he

successfully rebuts that presumption” and that Husband would take nothing on

his claim for money damages because “there is no cause of action recognized in

Texas by a presumed father to recover retroactive child support against a

biological father or to recover damages based on fraud and conspiracy with

respect to the child’s conception.” But the trial court denied S.T.’s motion for

summary judgment on the limitations issue.

      On January 9, 2015, the trial court signed an agreed “Order for Stipulation

of Facts,” stating that “IT IS ADJUDICATED, ORDERED AND DECREED that no

genuine issue exists with respect to the following facts, which are deemed

conclusively proven without need of further evidence for proof thereof, in

connection with the trial of this cause”: (1) Husband is not the father or biological

father of the child; and (2) “[f]acts exist that conclusively establish [Husband’s]

right to the relief of being able to challenge his paternity of [the child], pursuant to

Texas Family Code Section 160.607(b)(2).” Accordingly, the trial court ordered

that in the final decree, “it shall be adjudicated that [Husband] is not the father of

[the child] and that [Husband] shall have no rights and no duties, including the




                                           4
duty of support, regarding [the child] and as such, no provisions for the right[s] or

duties will be included in the final decree.”

      Although Husband contended in his response to S.T.’s motion for

summary judgment that the fraudulent concealment exception to the four-year

statute of limitations passed by the legislature in 2011 applied to allow him to

avoid limitations, his response to relator’s petition for writ of mandamus does not

contend that this statutory exception is available to him in avoidance of S.T.’s

statute of limitations defense. Instead, he argues here that the common law

discovery rule applies and that the 2011 amendment merely incorporated that

already-existing common law exception. 3

                                  Applicable Law

      When the child was born in February 2002, section 160.607 read as

follows:

             (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 disprove the relationship between
      a child and the child’s presumed father may be maintained at any
      time if the court determines that:



      3
        Husband’s argument is that the “2011 amendment to Texas Family Code
160.607(b)(2)[] did not add new law but was merely an embodiment of the
existing common law, which applies the discovery rule in cases of fraud and
breaches of fiduciary duty.”


                                           5
                   (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 openly treated the child
            as his own.

Act of May 25, 2001, 77th Leg., R.S., ch. 821, § 1.01, 2001 Tex. Gen. Laws

1610, 1621–22. In 2003, the legislature amended section (b)(2) to read, “the

presumed father never represented to others that the child was his own.” Act of

May 28, 2003, 78th Leg., R.S., ch. 1248, § 4, 2003 Tex. Gen. Laws 3537, 3538.

The child turned four in February 2006. No party has contended that either of the

exceptions listed in (b)(2) applied then or apply now.

      In the 2011 session, the legislature changed sections (b)(1) and (b)(2) of

section 160.607 so that the current version of section 160.607(b) provides as

follows:

             (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.

Act of May 27, 2011, 82nd Leg., R.S., ch. 1221, § 8, 2011 Tex. Sess. Law Serv.

3255, 3257–58 (West) (emphasis added). Husband contends that although the


                                         6
exception in (b)(2) was not in effect when the child was born or when the child

turned four years old, he can nevertheless rely on it to defeat the statute of

limitations in section 160.607(a).

      The enacting legislation for the amendment in (b)(2) states that “[t]he

changes in law made by this Act with respect to a proceeding to adjudicate

parentage apply only to a proceeding that is commenced on or after the effective

date of this Act.”   Id. § 11(b).    But relator contends that to apply the 2011

exception to this case impermissibly impairs his vested right to rely on the

limitations statute as it existed when the child was born.        Whether a law

unconstitutionally “impairs vested rights” is decided by whether “it takes away

what should not be taken away.” Robinson v. Crown Cork & Seal Co., 335

S.W.3d 126, 143 (Tex. 2010).         In determining whether a statute violates the

prohibition against retroactive laws in article I, section 16 of the Texas

Constitution, courts must consider three factors in light of the prohibition’s dual

objectives: the nature and strength of the public interest served by the statute as

evidenced by the legislature’s factual findings, the nature of the prior right

impaired by the statute, and the extent of the impairment. Id. at 145. The Texas

Supreme Court has held in three cases involving statutes of limitations that had

become vested that to apply an extended or expanded limitations period to allow

the plaintiff’s claim to go forward would be constitutionally impermissible. Baker

Hughes, Inc. v. Keco R. & D., Inc., 12 S.W.3d 1, 5 (Tex. 1999); Wilson v. Work,

62 S.W.2d 490, 490–91 (Tex. 1933) (orig. proceeding); Mellinger v. City of


                                          7
Houston, 3 S.W. 249, 253 (Tex. 1887); see Robinson, 335 S.W.3d at 146 (“This

Court has invalidated statutes as prohibitively retroactive in only three cases, all

involving extensions of statutes of limitations.”); In re K.N.P., 179 S.W.3d 717,

720 n.5 (Tex. App.––Fort Worth 2005, pet. denied).

      In Baker Hughes, the legislature had enacted a three-year statute of

limitations for trade secret appropriation claims after the two-year statute had

already passed as to the plaintiff’s claims. 12 S.W.3d. at 3–4. The new statute

of limitations also adopted the application of the discovery rule to trade secret

appropriations claims. Id. at 3. Although the enabling legislation purported to

apply the new statute of limitations to actions pending at the time it was passed

in which the trial had not yet begun, the supreme court held that the defendant,

Baker Hughes, was entitled to rely on the two-year statute of limitations because

it had vested before the new, extended statute of limitations was passed. Id.

The supreme court had also previously determined that the discovery rule did not

apply under the two-year limitations statute. Id. at 4–5; Computer Assocs. Int’l,

Inc. v. Altai, Inc., 918 S.W.2d 453, 458 (Tex. 1996) (op. on reh’g).

                                     Analysis

      In his response, Husband does not argue that the 2011 amendment to

section 160.607(b)(2) applies so that he can rely on that statutory exception;

instead, he contends that the 2011 amendment merely codified an already

existing application of the common law discovery rule to this type of case.

Specifically, Husband argues that because spouses have a fiduciary duty to each


                                         8
other––including the duty of full disclosure of facts affecting the marriage––the

common law discovery rule applicable to fraud and breach of fiduciary duty cases

operated in this case to toll the four-year statute of limitations.

      According to Husband, “the principle of tolling a statute of limitations in the

case of fraud or breach of fiduciary duty has been part of Texas case law long

before the 2011 amendment of Texas Family Code Section 160.607.” Husband

cites numerous cases exemplifying this principle: Willis v. Maverick, 760 S.W.2d

642, 645 (Tex. 1988); Quinn v. Press, 140 S.W.2d 438, 440 (Tex. 1940);

McClung v. Johnson, 620 S.W.2d 644, 646 (Tex. Civ. App.—Dallas 1981, writ

ref’d n.r.e.); and Smith v. Knight, 598 S.W.2d 720, 721 (Tex. Civ. App.––Fort

Worth 1980), writ ref’d n.r.e., 608 S.W.2d 165 (1980). But a review of those

cases shows that they involved causes of action subject to one of the general

limitations statutes, such as the two-year tort limitations statute. See Tex. Civ.

Prac. & Rem. Code Ann. § 16.003 (West Supp. 2014); see also Little v. Smith,

943 S.W.2d 414, 422 (Tex. 1997) (“In most discovery rule cases, courts are

faced with common-law causes of action and general statutes of limitations. . . .

[W]ithin the confines of the federal and Texas Constitutions, the Legislature is

free to determine that the discovery rule should not apply in certain cases, and it

has done so.”); In re Rodriguez, 248 S.W.3d 444, 452–53 (Tex. App.––Dallas

2008, orig. proceeding) (explaining that establishment of paternity is matter of




                                           9
legislative policy and that party may only rely on exceptions to section 160.607

promulgated by the legislature). 4

      The legislature could have chosen to incorporate the discovery rule into

the 2001 and 2003 versions of section 160.607(b), but it did not. See, e.g., Tex.

Bus. & Com. Code Ann. § 17.565 (West 2011) (incorporating discovery rule into

statute of limitations for DTPA cause of action); Underkofler v. Vanasek, 53

S.W.3d 343, 346 (Tex. 2001) (refusing to apply common law tolling rule in DTPA

legal malpractice case when DTPA limitations statute did not incorporate rule as

an exception); S.V. v. R.V., 933 S.W.2d 1, 22 (Tex. 1996) (refusing to apply

discovery rule to statute of limitations in sexual abuse civil suits and noting that

legislature’s newly enacted limitations provisions specific to those types of cases

merely expanded the limitations period rather than specifically incorporating the

discovery rule). We have found no cases applying the discovery rule to a pre-

2011 allegation of fraud by a presumed father regarding the conception of a child

during a marriage, and Husband has not cited one. See In the Interest of J.G.,

      4
        Moreover, the cases Husband cites regarding the fiduciary duty owed to
one another by spouses apply the discovery rule only to property division issues
in divorce: Solares v. Solares, 232 S.W.3d 873, 876–78 (Tex. App—Dallas
2007, no pet.); Boaz v. Boaz, 221 S.W.3d 126, 128–30 (Tex. App.—Houston [1st
Dist.] 2006, no pet.); In re Marriage of Moore, 890 S.W.2d 821, 825 (Tex. App.—
Amarillo 1994, no writ). But cf. Ditta v. Conte, 298 S.W.3d 187, 191–92 (Tex.
2009) (explaining that there is no statutory limitations provision directed at
divorce actions because of changing nature of trust and confidence between
spouses that can affect fault grounds). Regardless, because this type of action is
governed by a specific statute of limitations and therefore the discovery rule does
not apply, we need not decide the full extent of the fiduciary duty owed by Wife to
Husband in this case.


                                        10
No. 04-97-00950-CV, 1998 WL 904303, at *2 (Tex. App.––San Antonio Dec. 30,

1998, pet. denied) (not designated for publication) (holding that discovery rule did

not apply to statute of limitations in family code section 160.110 and stating that

“[n]o statute applies the discovery rule to a paternity action”). Accordingly, we

conclude and hold that the trial court abused its discretion by determining that

Husband (and by virtue of their agreement, Wife) can rely on the application of

either the common law discovery rule or the 2011 amendment to section

160.607(b) to defeat S.T.’s right to summary judgment on the limitations issue.

      Husband argues that by not incorporating the discovery rule into the 2001

and 2003 versions of section 160.607, the legislature abrogated a long-standing

common law right to rely on the common law discovery rule in cases of fraud.

See Cash Am. Int’l Inc. v. Bennett, 35 S.W.3d 12, 16 (Tex. 2000); Satterfield v.

Satterfield, 448 S.W.2d 456, 459 (Tex. 1969); Bruce v. Jim Walters Homes, Inc.,

943 S.W.2d 121, 122–23 (Tex. App.—San Antonio 1997, writ denied). But a

presumed father’s ability to deny paternity is itself a creature of statute; before

former section 12.06 of the family code 5 was enacted in 1983, a presumed father



      5
       Section 12.06 of the Family Code, added effective September 1, 1983,
provided as follows:

            DENIAL OF PATERNITY.            (a) In any suit affecting the
      parent-child relationship, other than a suit under Chapter 13 of this
      code, a man is entitled to deny his paternity of the child who is the
      subject of the suit and who was born or conceived during the
      marriage of the man and the mother of the child. The question of
      paternity under this section must be raised by an express statement

                                        11
who was married and living with his wife when a child was born could not deny

paternity unless he could establish nonaccess to the wife or impotence. In the

Interest of J.W.T., 872 S.W.2d 189, 193 (Tex. 1994) (op. on reh’g); Amanda v.

Montgomery, 877 S.W.2d 482, 486 (Tex. App.––Houston [1st Dist.] 1994, orig.

proceeding). When the child was born, Husband and Wife had no expectation

that the prior statute of limitations would apply because section 160.607 had

already been enacted and taken effect.         See K.N.P., 179 S.W.3d at 721.

However, even if the legislature’s enactment of section 160.607 in 2001 had

impermissibly shortened a prior statute of limitations on which they could rely, we

would still have to determine whether they nevertheless brought their suit within a

reasonable time after the prior limitations period on which they could rely expired.

Id. at 722.




      denying paternity of the child in the man’s pleadings in the suit,
      without regard to whether the man is a petitioner or respondent.

             (b)  In any suit in which a question of paternity is raised
      under this section, the court shall conduct the pretrial proceedings
      and order the blood tests as required in a suit under Chapter 13 of
      this code.

            (c)   In any suit in which a question of paternity is raised
      under this section, the man who is denying his paternity of the child
      has the burden of establishing that he is not the father of the child.

Act of May 30, 1983, 68th Leg., R.S., ch. 424, § 7, 1983 Tex. Gen. Laws 2346,
2355, repealed by Act of April 6, 1995, 74th Leg., R.S., ch. 20, § 2(1), 1995 Tex.
Gen. Laws 113, 282.


                                        12
      Rightly or wrongly, the legislature had determined when the child was born

that a four-year statute of limitations applied to a suit to adjudicate paternity and

had not yet endorsed the exception relied upon by Husband in this case. Thus,

S.T.’s right to rely on that limitations period as a defense vested. See, e.g.,

Baker Hughes, 12 S.W.3d at 4.          The Corpus Christi court of appeals has

articulated the public policy behind the legislature’s determination as follows:

             The purpose of a statute of limitations in cases where a child
      has a presumed father is to avoid the severance of the parent-child
      relationship between the child and the presumed father—the
      psychological father. . . .

             ....

            . . . Section 160.607(a) prevents a mother, a presumed father,
      or any other individual, including the biological father, from
      destroying the father-child relationship between a presumed father
      and the child. The purpose of the Uniform Parentage Act . . . , which
      the Texas Legislature adopted in 2001, is to protect the child
      involved in parentage issues. . . . A statute of limitations in cases
      where the child has a presumed father usually protects a child
      because it preserves the established family unit.

In re A.D.M., No. 13-09-00677-CV, 2011 WL 3366381, at *12–13 (Tex. App.––

Corpus Christi Aug. 4, 2011, pets. denied) (mem. op.) (emphasis added)

(citations omitted). Although the legislature has since allowed for an exception in

cases of fraud by misrepresentation, this public policy concern is not frustrated in

a case such as this one, in which there is a long-term relationship between the

child and presumed father, and the relator’s right to rely on the statute of

limitations in effect at the relevant time has long since vested.




                                         13
      We conclude and hold that the trial court abused its discretion by denying

S.T.’s motion for summary judgment seeking a declaration that Husband’s suit to

adjudicate paternity was barred by limitations.

      S.T. also challenges the trial court’s agreed Order of Stipulations.

According to Husband, S.T. has no standing to challenge the Order of

Stipulations because (1) he is not a party to it, (2) the stipulated facts he

challenges relate only to the relationship between Husband and the child, and (3)

the stipulated facts do not name S.T. as the presumptive father of the child.

      Even though the agreed Order of Stipulations does not directly purport to

impose liability on S.T., nor does it adjudicate him the child’s biological father, the

stipulation that “[f]acts exist that conclusively establish [Husband’s] right to the

relief of being able to challenge his paternity of [the child], pursuant to Texas

Family Code Section 160.607(b)(2),” addresses and resolves––contrary to our

holding above––S.T.’s challenge to Husband’s suit on limitations grounds.

Husband and Wife cannot bind S.T., also a party to the underlying proceeding, to

this stipulation, nor can they resolve this issue by stipulation. See Computize,

Inc. v. NHS Commc’ns Group, Inc., 992 S.W.2d 608, 614 (Tex. App.––Texarkana

1999, no pet.); Kenneth H. Hughes Interests, Inc. v. Westrup, 879 S.W.2d 229,

233 (Tex. App.––Houston [1st Dist.] 1994, writ denied) (op. on reh’g) (“Hayman’s

liability, or lack of same, under the indemnity provision is not an issue that could

be properly decided by a stipulation made by parties other than Hayman at a trial

in which Hayman did not participate.”).


                                          14
      Moreover, the stipulations that Husband is not the father or biological

father attempt to adjudicate Husband’s nonpaternity by agreement contrary to

section 160.204(b), which provides that a presumption of paternity may be

rebutted in only two ways: (1) by an adjudication under subchapter G of chapter

160 or (2) by the filing of a denial of paternity along with the filing of a valid

acknowledgment of paternity by another person.             Tex. Fam. Code Ann.

§ 160.204(b). A suit under subchapter G cannot be maintained without “a man

whose paternity of the child is to be adjudicated” joined as a necessary party. Id.

§ 160.603(2) (West 2014). The statutory scheme regarding the establishment of

parentage thus contemplates that a child will not be left without a means of

support, either by a presumed father or an adjudicated father. Compare Gribble

v. Layton, 389 S.W.3d 882, 890 (Tex. App.––Houston [14th Dist.] 2012, pet.

denied) (holding that family code section 160.606 furthers public policy of

ensuring that child’s parents, rather than taxpayers, support the child), with Tex.

Fam. Code Ann. § 153.001(a)(2) (West 2014) (providing that public policy of

Texas is to provide safe, stable, and nonviolent environment for child), A.D.M.,

2011 WL 3366381, at *12 (holding that public policy behind statute of limitations

in section 160.607 is to protect the child by preserving an existing family unit); cf.

Goodson v. Castellanos, 214 S.W.3d 741, 749 (Tex. App.––Austin 2007, pet.

denied) (“The destruction of a parent-child relationship is a traumatic experience

that can lead to emotional devastation for all the parties involved, and all

reasonable efforts to prevent this outcome must be invoked when there is no


                                         15
indication that the destruction of the existing parent-child relationship is in the

best interest of the child.”). Husband and Wife’s agreements in the Order of

Stipulations in this particular situation, therefore, contravene the statutory

scheme and directly affect S.T.:       once Husband is no longer considered a

presumed father without the necessity of an adjudication of paternity as required

by the statute, no statute of limitations applies to a suit by the child or Wife

against S.T. to establish parentage. See Tex. Fam. Code Ann. §160.606 (West

2014); see also In re Ngo, No. 05-13-00382-CV, 2013 WL 3974136, at *1–2

(Tex. App.––Dallas Aug. 2, 2013, orig. proceeding) (mem. op.) (holding trial court

erred by adjudicating parentage of presumed father in divorce decree and

granting mandamus relief in subsequent proceeding to adjudicate parentage of

alleged biological father). Consequently, we also conclude and hold that the trial

court abused its discretion by including the findings regarding Husband’s

nonpaternity in the agreed Order of Stipulations.

                               Adequacy of Remedy

      Because it is interlocutory, a trial court’s denial of summary judgment is

generally not a ground for mandamus relief. In re United Servs. Auto. Ass’n

[USAA], 307 S.W.3d 299, 314 (Tex. 2010) (orig. proceeding). This rule is based

in part on the justification that a party will not be twice subjected to a trial of the

same issues. Id. at 314. However, issues involving the rights of parents and

children should be resolved expeditiously, and delay in such cases often renders

appellate remedies inadequate. In re Tex. Dep’t of Family Protective Servs., 210


                                          16
S.W.3d 609, 613 (Tex. 2006) (orig. proceeding) (op. on reh’g) (involving trial

court’s abuse of discretion in failing to dismiss termination of parental rights trial);

see also USAA, 307 S.W.3d at 314 (holding that mandamus relief was

appropriate to remedy denial of summary judgment when USAA had already

endured one trial and was facing a second trial on claims barred by limitations).

      Here, Husband joined the adjudication of paternity action in the underlying

proceeding, and Husband and Wife’s agreement regarding property division

apparently takes the possible future recovery of child support from S.T. into

consideration as part of the property division. Thus, whether Husband’s suit to

adjudicate paternity of S.T. may continue is a factor in Husband’s and Wife’s

negotiations in the divorce proceeding, as evidenced by their rule 11 agreement

and agreed stipulations of fact. Moreover, as we have explained above, allowing

Husband and Wife to continue their divorce and SAPCR on the agreed facts

contained in the Order of Stipulations would vitiate S.T.’s defense upon the

decree’s becoming final, regardless of the status of the adjudication proceeding

against him.    We therefore conclude that S.T. does not have an adequate

remedy by appeal. See Rodriguez, 248 S.W.3d at 454 (holding that party has no

adequate remedy by appeal from trial court’s order in contravention of section

160.607 statute of limitations).

                                     Conclusion

      For the reasons set forth above, we conditionally grant S.T. the relief he

seeks. We order the trial court to (1) vacate its order denying S.T. summary


                                          17
judgment on his declaratory judgment claim that Husband’s suit to rebut the

presumption of his paternity of the child and to adjudicate S.T.’s paternity of the

child is barred by limitations and (2) render summary judgment for S.T. on his

claims. We also order the trial court to delete the following from the agreed

Order of Stipulations:

               4. Petitioner is not the father of [the child].

               5. Petitioner is not the biological father of [the child].

            6. Facts exist that conclusively establish Petitioner’s right to
      the relief of being able to challenge his paternity of [the child],
      pursuant to Texas Family Code Section 160.607(b)(2).

Except to the specific relief granted herein, the trial court’s orders stand. A writ of

mandamus will issue only if the trial court fails to comply with this order.

Additionally, this court’s order staying proceedings in the trial court will be

automatically lifted upon the trial court’s compliance with this court’s order as set

forth above.

                                                         /s/ Terrie Livingston

                                                         TERRIE LIVINGSTON
                                                         CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and GABRIEL, JJ.

DELIVERED: June 12, 2015




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