In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
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No. 02-20-00366-CV
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IN RE J.H. AND J.H., Relators
Original Proceeding
362nd District Court of Denton County, Texas
Trial Court No. 20-4843-362
Before Birdwell, Womack, and Wallach, JJ.
Memorandum Opinion by Justice Wallach
MEMORANDUM OPINION
J.D.H. (Mother) and her husband J.M.H. (Husband) (collectively, Relators) seek
mandamus relief from the trial court’s denial of their motion to dismiss real party in
interest F.H.’s suit to adjudicate parentage and suit to affect the parent-child
relationship (SAPCR) based on lack of standing. Because F.H. (RPI) had standing to
bring this suit under Texas Family Code Sections 160.602 and 102.003(a)(8), the trial
court did not abuse its discretion by denying their motion. See Tex. Fam. Code Ann.
§§ 102.003(a)(8), 160.602. Accordingly, under the applicable standard of review, see In
re C.J.C., 603 S.W.3d 804, 811 (Tex. 2020), we deny mandamus relief.
Background Facts
Mother gave birth to a child in February 2011. Because Relators have an open
marriage and Mother had been in a romantic relationship with RPI, Mother purchased
paternity tests about a week after the child’s birth. These tests revealed that RPI was
the child’s biological father. While RPI has occasionally lived in the same house as
Relators and the child, he has not done so since 2015. However, RPI has remained
involved in the child’s life, and the child refers to both Husband and RPI as his dad.
In June 2020, RPI filed this suit to adjudicate paternity and SAPCR seeking
conservatorship and child support. See Tex. Fam. Code Ann. § 160.610 (allowing a
person to combine a proceeding to adjudicate parentage with a proceeding for
possession or access to a child or for child support). Relators filed a motion to strike
and motion to dismiss arguing that RPI lacked standing and that the case was barred
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by limitations under Family Code Section 160.607, which requires a suit to adjudicate
paternity to be brought within four years of a child’s birth if the child has a presumed
father. Id. § 160.607. The trial court denied their motion after a hearing. Relators then
filed this mandamus proceeding.1
Standing
Section 160.602
Under Family Code Section 160.602, RPI has standing to file a suit to
adjudicate parentage. That section provides that “[s]ubject to Subchapter D and
Sections 160.607 and 160.609 . . . , a proceeding to adjudicate parentage may be
maintained by . . . a man whose paternity of the child is to be adjudicated.” Tex. Fam.
Code Ann. § 160.602(a)(3). RPI is an alleged biological father2 seeking an adjudication
of his parentage. Thus, he has standing to sue for an adjudication of parentage. See In
re Sullivan, 157 S.W.3d 911, 919 (Tex. App.—Houston [14th Dist.] 2005, orig.
proceeding).
1
Although the “denial of a motion to dismiss based on lack of standing is
generally considered an incidental ruling for which appeal is an adequate remedy,” in a
SAPCR action, mandamus relief is appropriate for an order denying a motion to
dismiss for lack of standing because of “the unique and compelling circumstances
presented” in such cases. In re Martin, 523 S.W.3d 165, 169 (Tex. App.—Dallas 2017,
no pet.).
2
The mandamus record contains a January 2011 email from Mother informing
RPI that she had ordered DNA tests and stating that she “didn’t get the legal
documented ones.” Relators do not, however, assert that the DNA test fails to satisfy
the requirements for genetic testing under the Family Code, see Tex. Fam. Code Ann.
§ 160.503, or dispute that RPI is the child’s biological father.
3
Relators argue, however, that in order for RPI to have standing, he had to have
sued within the limitations period in Section 160.607. See Tex. Fam. Code Ann.
§ 160.607(a). We disagree. While the legislature can choose to make a filing deadline
jurisdictional, generally a statute of limitations provides an affirmative defense, not a
jurisdictional hurdle. See Day v. McDonough, 547 U.S. 198, 205, 126 S. Ct. 1675,
1681 (2006); In re United Servs. Auto. Ass’n, 307 S.W.3d 299, 308 (Tex. 2010) (orig.
proceeding); see also In re Brehmer, 428 S.W.3d 920, 922 (Tex. App.—Fort Worth 2014,
orig. proceeding) (“Absent clear legislative intent, we resist classifying a statutory
provision as jurisdictional.”). With respect to Section 160.607, this court has
previously treated the question of whether an alleged biological father has standing as
one separate from the question of whether limitations have run. See In re J.C.,
594 S.W.3d 466, 475 (Tex. App.—Fort Worth 2019, no pet.).3 Further, a holding that
Section 160.602 confers standing only until the limitations period expires would
arguably conflict with the Texas Supreme Court’s holding that a biological father’s
standing to adjudicate parentage is constitutionally mandated in some circumstances.
See In re J.W.T., 872 S.W.2d 189, 195 (Tex. 1994); see also Brehmer, 428 S.W.3d at
923 (stating that in deciding whether a statute is jurisdictional, we consider the
3
In J.C., we stated that Section 160.607 presupposes that a biological father has
standing, and we then upheld the trial court’s denial of his petition to adjudicate
parentage based on limitations. J.C., 594 S.W.3d at 475, 477; see also Brehmer,
428 S.W.3d at 923 (considering a statute’s plain meaning in determining whether the
statute is jurisdictional).
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implications of alternative interpretations). Accordingly, we decline to apply Section
160.607 as a limitation on the standing conferred by Section 160.602.4
Section 102.003
RPI also has standing to bring the SAPCR portion of his suit. Family Code
Section 102.003 provides standing to individuals for SAPCR suits, and Subsection
(a)(8) specifically confers standing on “a man alleging himself to be the father of a
child filing in accordance with Chapter 160, subject to the limitations of that chapter,
but not otherwise.” Tex. Fam. Code Ann. § 102.003(a)(8). While RPI’s amended
petition did not cite this subsection, the allegations in his petition support standing on
that basis because RPI alleged that he is the biological father of the child and sought
an adjudication of parentage under Chapter 160. Accordingly, RPI has standing under
Subsection (a)(8) to file the SAPCR portion of his suit in conjunction with his suit to
adjudicate parentage.5
4
In In re H.C.S., the San Antonio Court of Appeals held that the standing
conferred by Section 160.602 is subject to the statutory provisions in Subtitle D of
Chapter 160 regarding voluntary acknowledgments of paternity. 219 S.W.3d 33, 36–
37 (Tex. App.—San Antonio 2006, no pet.). However, that case is factually
distinguishable from this case and does not involve Section 160.607 or whether that
section is a limit on standing.
5
Because RPI has standing under Sections 102.003(a)(8) and 160.602, we do not
address Relators’ arguments challenging RPI’s other asserted bases for standing.
5
Conclusion
Because RPI has standing to file the suit to adjudicate parentage and SAPCR,
the trial court did not abuse its discretion by denying Relators’ motion. Accordingly,
we deny relief, and we lift our November 20, 2020 stay of proceedings.
/s/ Mike Wallach
Mike Wallach
Justice
Delivered: February 25, 2021
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