concurring and dissenting.
I concur with the plurality opinion that the judgment of the court of appeals should be affirmed as to the cause of action of Mary Jenkins, the decedent’s mother. As to the plurality’s holding regarding the causes of action of the alleged children of the decedent, however, I dissent.
I cannot agree with the court’s speculative conclusion that the term “children” includes illegitimate children. Neither the cases cited by the majority, nor statutes, nor legislative history supports that interpretation. The Texas Wrongful Death Act limits standing to sue under its provisions to the surviving spouse, children, and parents. If the terms “spouses” and “parents” are given their common meaning under the statute, then so too should the term “children” be given its commonly accepted meaning.
The Probate Code provides that an unrecognized illegitimate child of a father is not a child of the putative father. TEX.PROB. CODE ANN. § 3(b) (Vernon 1980). The Probate Code also provided a method, applicable in this case, to allow an illegitimate child to inherit from a putative father. Under section 42(b), the child may inherit if (1) he is “born or conceived before or during the marriage of his father and mother”; (2) paternity is established by voluntary proceedings under Chapter 13 of the Texas Family Code; or (3) the putative father executes a voluntary statement of paternity. None of these prerequisites occurred here. The court in this case writes as though the legislature forgot to add another method, and legislatively adds another way to legitimate a child.
In another analogous statute, the Workers Compensation Act, the legislature provided that only heirs may recover death benefits under the act. TEX.REV.CIV. STAT.ANN. art. 8306 § 8a (Vernon Supp. 1988).
The wrongful death action under consideration here is not a common law action; it is purely statutory in origin and existence. To superimpose on the statute an interpretation that was never reflected in legislative history nor in analogous statutes can only be exposed for what it is — judicial legislating. See Lucas v. United States, 757 S.W.2d 687, 701 (Tex.1988) (Gonzalez dissenting) (court should not act like a “super-legislature” in violation of the separation of powers doctrine).
*227The United States Supreme Court has addressed issues concerning recovery by illegitimate children, and suggested that denying a cause of action in cases such as this poses no constitutional problems. In Levy v. Louisiana, 391 U.S. 68, 88 S.Ct. 1509, 20 L.Ed.2d 436 (1968) the Supreme Court held that illegitimate children may sue for the wrongful death of their mother, whose identity as parent was without dispute and existed as a biological fact, without resort to additional court proceedings. Moreover, the- Court said that the children “were dependent on her” (emphasis added) and “they were indeed hers in the biological and in the spiritual sense.” Id. at 72, 88 S.Ct. at 1511, 20 L.Ed.2d at 439.
A second case dealing with the rights of illegitimate children under statutory causes of action is Weber v. Aetna Casualty & Surety Company, 406 U.S. 164, 92 S.Ct. 1400, 31 L.Ed.2d 768 (1972). In allowing illegitimate children to recover worker’s compensation benefits that Court held “Louisiana’s denial of the equal recovery rights to dependent unacknowledged ille-gitimates” of a father “violates the Equal Protection Clause of the Fourteenth Amendment.” Id. at 165, 92 S.Ct. at 1401, 31 L.Ed.2d at 773 (emphasis added). The Louisiana wrongful death statute expressly provided for recovery by “the legal dependent of the employee, actually and wholly dependent upon his earnings for support at the time of accident and death....” Id. at 174-75 n. 12, 92 S.Ct. at 1406 n. 12, 31 L.Ed.2d at 778 n. 12. The Court stated: “[I]n this case they are dependent children, and as such are entitled to rights granted other dependent children.” Id. at 170, 92 S.Ct. at 1404, 31 L.Ed.2d at 776 (emphasis original). The Court’s rationale expressly limits its holding:
By limiting recovery to dependents of the deceased, Louisiana substantially lessens the possible problems of locating illegitimate children and of determining uncertain claims of parenthood.
Id. at 174, 92 S.Ct. at 1406, 31 L.Ed.2d at 778. By its language, the Court strongly suggests that the action for wrongful death can be denied to non-dependent children.
All of the illegitimate children who seek recovery here were adults at the time of Jenkins’ death. None of them lived in the home of Jenkins at the time of his death. There is no evidence Jenkins supported them or that they were dependent on him for any part of their living expenses.
This court subjects itself to self-imposed pressure to reach a result never intended by the legislature and not warranted by the statutory language. The rights afforded by the Wrongful Death statute stem from the existence of the family relationship and from no other societal source. It is consistent with legislative intent and the holdings of the U.S. Supreme Court to limit the cause of action for wrongful death to dependent children. Therefore, this court incorrectly and needlessly extends the wrongful death action to adult, non-dependent children.
CULVER, J., joins in this concurring and dissenting opinion.