
In The


Court of Appeals


Ninth District of Texas at Beaumont


____________________

NO. 09-05-351 CV
____________________

IN RE ATTORNEY GENERAL OF TEXAS 
 

Original Proceedings


OPINION
 This is an application for writ of mandamus.  The Attorney General seeks to vacate
a trial court order requiring the parties to submit to paternity testing.  The Attorney General
contends the trial court erred in granting Corey Reed, Sr.'s request for paternity testing
because Reed failed to establish a prima facie case for a bill of review.  We hold the trial
court abused its discretion in ordering the paternity test because Reed's petition failed to
meet the initial pleading requirement for bringing a bill of review proceeding.  We
conditionally grant the writ. 
	On February 6, 2001, the trial court entered an order establishing the parent-child
relationship, adjudicating Reed as the biological father of minor child D.R., and ordering
Reed to pay child support.  While Reed appeared in such proceeding, he did not sign or
otherwise expressly agree to the order.  On March 9, 2004, the trial court held a hearing,
apparently pursuant to a motion filed by the Attorney General's office and, by agreed order
of the parties, ordered Reed to pay child support arrearages.   
	On March 2, 2005, Reed filed a verified original petition for bill of review, contesting
his paternity of D.R. and requesting that the trial court order a paternity test to determine the
child's parentage.  Reed alleged that:  (1) the child's mother fraudulently failed to provide
Reed with pertinent information concerning the child's paternity; (2) after the court
adjudicated Reed as the child's father, he learned that he may not be the child's biological
father; (3) his failure to assert the claim was not a result of negligence or fraud on his part;
(4) he has no adequate legal remedy; (5) he did not discover the fraud until more than thirty
days after the judgment; and (6) the judgment's invalidity does not appear on the face of the
record.  On June 1, 2005, Reed filed an unsworn second amended petition that alleged:  (1)
he was in prison during the pregnancy; (2) after the child's birth, the child's mother, the
mother's parents, and Reed's parents informed him that he was the child's father; (3) Reed
did not request a paternity test prior to the hearing establishing the parent-child relationship
because he trusted the information he was given; (4) as the child grew, Reed could see no
similarities between himself and the child and he began to question the child's paternity; and
(5) Reed has since learned through DNA testing that he is not the child's biological father. 
Reed attached a genetic test report conducted by Orchid Genescreen, and claimed that the
report excluded him as the child's father.  The Attorney General contested the admissibility
and accuracy of this test.
	On July 12, 2005, the trial court, without conducting a hearing on Reed's bill of
review, ordered that the parents and child submit to paternity testing.  The Attorney General
seeks to vacate this order. 
	A court of appeals will issue a writ of mandamus if the trial court abuses its discretion
and the relator has no adequate remedy at law.  Walker v. Packer, 827 S.W.2d 833, 839, 840
(Tex. 1992).  A trial court abuses its discretion if it reaches a decision so arbitrary and
unreasonable as to amount to a clear and prejudicial error of law.  Id. at 839. 
	"A bill of review is an independent equitable action brought by a party to a former
action seeking to set aside a judgment no longer appealable or subject to a motion for new
trial."  Baker v. Goldsmith, 582 S.W.2d 404, 406 (Tex. 1979).  A petition for a bill of review
must allege specific facts and demonstrate the earlier judgment was rendered as the result of
fraud, accident, or wrongful act of the opposite party or official mistake, unmixed with the
complainant's own negligence.  Id. at 408.  The petitioner must further allege, with
particularity, sworn facts sufficient to constitute a meritorious defense, and as a pretrial
matter, present prima facie proof to support the contention.  Id.  "This preliminary showing
is essential in order to assure the court that valuable judicial resources will not be wasted by
conducting a spurious 'full-blown' examination of the merits."  Id. 
	A petition for bill of review must allege extrinsic fraud.  See Tice v. City of Pasadena,
767 S.W.2d 700, 702 (Tex. 1989).  "[F]ailure to plead extrinsic fraud will result in denial of
the right to a trial by bill of review."  Ince v. Ince, 58 S.W.3d 187, 190 (Tex. App.--Waco
2001, no pet.)(citing Tice, 767 S.W.2d at 700).  Extrinsic fraud is fraud which denies a party
the opportunity to fully litigate at trial all the rights or defenses that could have been asserted. 
Tice, 767 S.W.2d at 702.  It is "wrongful conduct practiced outside of the adversary trial--such as keeping a party away from court, making false promises of compromise, denying a
party knowledge of the suit--that affects the manner in which the judgment is procured." 
Ince, 58 S.W.3d at 190 (citing Alexander v. Hagedorn, 148 Tex. 565, 226 S.W.2d 996, 1002
(1950)).  "Extrinsic fraud is 'collateral' fraud in the sense that it must be collateral to the
matter actually tried and not something which was actually or potentially in issue in the
trial."  Montgomery v. Kennedy, 669 S.W.2d 309, 312 (Tex. 1984)(citing Couch v. McGaw,
134 Tex. 633, 639, 138 S.W.2d 94, 97 (1940)).  
	Intrinsic fraud, on the other hand, "relates to the merits of the issues which were
presented and presumably were or should have been settled in the former action."  Tice, 767
S.W.2d at 702.  Intrinsic fraud "is inherent in the matter considered and determined in the
trial 'where the fraudulent acts pertain to an issue involved in the original action, or where
the acts constituting the fraud were, or could have been litigated therein.'"  Montgomery, 699
S.W.2d at 313 (quoting Mills v. Baird, 147 S.W.2d 312, 316 (Tex. Civ. App.--Austin 1941,
writ ref'd).
	Reed's petition fails to allege extrinsic fraud.  Reed's petition alleges that the child's
mother fraudulently failed to provide him with pertinent information concerning the child's
paternity and that after the court adjudicated Reed as the child's father, he learned through
DNA testing that he is not the child's biological father.  The issue of paternity was resolved
by the trial court in the original action.  The mother's alleged fraud relates directly to
paternity and Reed had the opportunity to contest paternity at trial.  Thus, Reed's petition
only alleges, at most, intrinsic fraud.  As only extrinsic fraud can be the basis of a bill of
review, Reed's petition is insufficient.  Tice, 767 S.W.2d at 702.  Further, Reed's second
amended petition, the live pleading at the time of the trial court's order for discovery, is
unsworn.
	Reed did not meet the initial requirement for bringing a bill of review proceeding; he
did not adequately allege in his petition that the prior judgment was rendered as the result of
fraud, accident, or wrongful act of the opposite party or official mistake.  Reed further failed
to allege, with particularity, sworn facts to constitute a meritorious defense.  In order to
invoke the equitable powers of the court by a bill of review, the complainant must file a
petition that meets those initial requirements set forth by the Baker court.  "This preliminary
showing is essential in order to assure the court that valuable judicial resources will not be
wasted by conducting a spurious 'full-blown' examination of the merits."  Baker, 582 S.W.2d
at 408.  We read this to include the discovery process.  See Amanda v. Montgomery, 877
S.W.2d 482, 485-87 (Tex. App.--Houston [1st Dist.] 1994, no writ) (where petition for bill
of review was fatally defective, discovery order is not allowed).  We hold the trial court
abused its discretion in ordering the parties to submit to paternity testing when Reed's
petition fails to meet the initial requirements for a bill of review proceeding.  Where the bill
of review complainant's allegations are legally insufficient to warrant a bill of review,
extraordinary relief is appropriate.  See Tice, 767 S.W.2d at 702.  We order the trial court to
vacate its order of July 12, 2005.  We are confident the trial court will comply with this
opinion.  The writ will issue only if the court does not. 
	WRIT CONDITIONALLY GRANTED.
                                                                                                   PER CURIAM
Submitted on November 17, 2005
Opinion Delivered February 9, 2006


Before Kreger, Gaultney, and Horton, JJ. 
