Opinion by: Phylis J. Speedlin, Justice
Sitting: Alma L. López, Chief Justice
Sarah B. Duncan, Justice
Phylis J. Speedlin, Justice
Delivered and Filed: August 4, 2004
REVERSED AND REMANDED
William Henry Ashcraft ("Ashcraft"), an inmate acting pro se, appeals from a default judgment establishing his parent-child relationship with J.A.G., a minor child. We reverse the judgment of the trial court and remand the cause for further proceedings.
Background
The Office of the Texas Attorney General filed a petition to establish the parent-child relationship between Ashcraft and J.A.G., a minor child. Although properly served, Ashcraft was incarcerated and relied on his attorney to answer and appear at the hearing on his behalf; his counsel failed to appear and did not file a timely answer. The trial court entered a default judgment adjudicating Ashcraft the biological father of J.A.G., appointing him joint managing conservator, and ordering him to pay current and retroactive child support. Ashcraft filed a general denial after the judgment was signed. During the trial court's plenary jurisdiction, Ashcraft filed a motion for rehearing (2) denying paternity and a motion for DNA testing, which were overruled. This appeal followed.
Analysis
On appeal, Ashcraft contends that the trial court erred in entering the default judgment because he is not the child's father, and he was incarcerated at the time of the hearing and relied on counsel to appear on his behalf. The Attorney General acknowledges that the judgment must be reversed and remanded because the trial court erred in (1) failing to make a record of the proceedings and (2) failing to grant Ashcraft's motion for rehearing and request for DNA testing.
The Supreme Court has held that the trial court has an affirmative duty to insure that the court reporter makes a record of proceedings involving parent-child relationships, unless waived by the parties with the court's consent, and failure to do so constitutes error on the face of the record requiring reversal. Stubbs v. Stubbs, 685 S.W.2d 643, 645-46 (Tex. 1985) (interpreting former §11.14(d) of the Texas Family Code, the predecessor to current §105.003 of the Texas Family Code). Section 105.003 of the Texas Family Code states that a record of proceedings in suits affecting the parent-child relationship must be made unless waived by the parties with the consent of the court. Tex. Fam. Code Ann. § 105.003 (Vernon 2002). Where a party is not present or represented by counsel at the hearing, however, the making of a record cannot be waived as to the absent party and a trial court commits error in consenting to the waiver of a record. See Ramirez v. Sanchez, 871 S.W.2d 534, 535 (Tex. App.--San Antonio 1994, no writ); see also In re Vega, 10 S.W.3d 720, 722 (Tex. App.--Amarillo 1999, no pet.).
Here, the judgment recites that "[a] record of the proceedings was waived by the parties with the consent of the court." Because Ashcraft was not present at the hearing nor was he represented by counsel, he could not waive the making of a record and the trial court erred in consenting to the waiver of a record. See Ramirez, 871 S.W.2d at 535-36; Vega, 10 S.W.3d at 722. Accordingly, the judgment must be reversed and remanded for a new trial based on the lack of a record.
In addition, we conclude the trial court abused its discretion in failing to grant Ashcraft's motion for new trial and motion for DNA testing. See Dir., State Employees Workers' Comp. Div. v. Evans, 889 S.W.2d 266, 268 (Tex. 1994) (trial court's denial of motion for new trial is reviewed under abuse of discretion standard). Before a default judgment can be set aside and a new trial granted, the defendant must satisfy all the elements of the Craddock test. Bank One, Texas, N.A. v. Moody, 830 S.W.2d 81, 82-83 (Tex. 1992); see Craddock v. Sunshine Bus. Lines, Inc., 134 Tex. 388, 133 S.W.2d 124, 126 (1939). Under Craddock, a default judgment should be set aside and a new trial granted in any case in which the defendant demonstrates: (1) that his failure to answer was not intentional or the result of conscious indifference; (2) that he has a meritorious defense; and (3) that granting a new trial will not operate to cause delay or other injury to the plaintiff. Norton v. Martinez, 935 S.W.2d 898, 901 (Tex. App.--San Antonio 1996, no writ) (citing Craddock, 133 S.W.2d at 126). Where the elements of the Craddock test are satisfied, it is an abuse of discretion to deny the defendant a new trial. Id.; Evans, 889 S.W.2d at 268.
As the Attorney General concedes, the record shows that Ashcraft's failure to appear at the hearing was not intentional or the result of conscious indifference; there is no conflicting evidence on this issue. Ashcraft's motion for new trial asserts a meritorious defense which, if proved, would change the result of the proceedings. Norton, 935 S.W.2d at 902. Finally, the Attorney General agrees that the parties will not be harmed by a delay for a new trial and DNA testing; rather, such a delay is preferable if it results in the necessary evidence to determine paternity of the child. Because all the elements of the Craddock test are met, the court abused its discretion in denying Ashcraft a new trial. Further, in view of the unique nature of a paternity action and the fact that paternity is generally, and preferably, resolved by DNA testing, we conclude that the court also abused its discretion in failing to grant Ashcraft's motion for DNA testing.
Based on the foregoing reasons, we reverse the judgment and remand the cause for a new trial consistent with this opinion.
Phylis J. Speedlin, Justice
1. The Honorable John Specia is the presiding judge of the 225th Judicial District Court, Bexar County, Texas. Associate Judge Juan Antonio Chavira presided over the hearing regarding the parent-child relationship and signed the default judgment that is the subject of this appeal. See Tex. Fam. Code Ann. §§ 201.007(c), 201.013(b) (Vernon Supp. 2004).
2. Ashcraft's "Motion for Rehearing" is equivalent to a motion to set aside the default judgment and motion for new trial, and will be treated as such.