dissenting.
I respectfully dissent from the court’s majority opinion. Persons who report suspected sexual abuse of a child in bad faith or with malice are not entitled to immunity. See Tex.Fam.Code Ann. § 34.03(b) (Vernon 1995).
Appellee’s affidavit, which states her report was made in “good faith and without malice,” is self-serving and conclusory. Appellant’s summary judgment proof raises sufficient facts to controvert this issue. Appellant’s affidavit asserts in pertinent part that, appellee suspected child abuse based on a drawing of a church with an archway, among other such drawings. Appellant’s affidavit also asserts that appellee failed to disclose that no test exists that can determine if abuse has occurred and by whom. Furthermore, appellant’s expert’s affidavit states that the use of prospective drawings and puppets has not been proven reliable to indicate sexual abuse. Thus, there is a question as to a valid basis for appellee’s report. Appellant raised a genuine issue of material fact, whether appellee made her report in good faith and without malice.
Appellee also contends that the statute of limitations bars appellant’s causes of action for common law fraud and DTPA violations. The discovery rule applies to the statute of limitations in DTPA cases. TexJBus. & Com. Code Ann. § 17.565; Burns v. Thomas, 786 S.W.2d 266 (Tex.1990). The record reflects appellant did not discover and could not have discovered through reasonable diligence that there was no scientific basis for appellee’s technique of assessing child abuse until May, 1993, and he filed his original petition July 7, 1993. In addition, fraud has a four year statute of limitations. Thus, appellant’s cause of action is not barred by the statute of limitations.
Accordingly, I would reverse the summary judgment and remand for a trial on the merits.