dissenting.
Derek is faulted for not contesting paternity when he was divorced. We should remember that he was faced with a statutory presumption that a child born during a marriage is the child of the husband. Tex. Fam.Code Ann. § 151.002(a)(1) (Vernon Supp.2001). He also maintains that Virginia gave him no reason to suspect otherwise.
When a legal proceeding determines that an individual is the father of a child and the determination turns out to be demonstrably false, the judicial system should provide a remedy. And it does.
REVIEW AUTHORIZED UNDER EXISTING PRECEDENTS
The majority relies on Alexander v. Hagedorn, 148 Tex. 565, 226 S.W.2d 996 (1950). However, in Alexander the Supreme Court said extrinsic fraud exists when “a wrongful act [is] committed by the other party to the suit which has prevented the losing party either from knowing his rights or defenses, or from having a fair opportunity of presenting them upon the trial.” Alexander, 226 S.W.2d at 1001; accord Crouch v. McGaw, 134 Tex. 633, 138 S.W.2d 94, 97 (1940).
An even earlier “leading case” is McMurry v. McMurry, where the Supreme Court held that a wife’s petition to set aside the property division in a divorce judgment stated a claim for relief based on allegations that the husband’s deception had prevented the wife from presenting her case. McMurry v. McMurry, 67 Tex. 665, 4 S.W. 357, 361 (1887).
Virginia’s failure to disclose to Derek the extra-marital relationship and the concealment of it, along with the statutory (and societal) presumption, caused Derek not to investigate whether or not he was the father of her child or to contest paternity during the divorce proceeding. Under the Alexander test, her fraudulent concealment amounts to extrinsic fraud, even though her false testimony at the divorce hearing does not. See Alexander, 226 S.W.2d at 1001; see also Chapman v. King Ranch, Inc., 41 S.W.3d 693, 700-01 (Tex.App.-Corpus Christi 2001, pet. filed) (bill of review attacking judgment over one hundred years old; summary judgment reversed and cause remanded for trial). This is a crucial distinction which the majority dismisses.
RESTATEMENT OF JUDGMENTS
Furthermore, Section 70 of the Restatement (Second) of Judgments, “Judgment Procured by Corruption, Duress, or Fraud,” provides:
(1) Subject to the limitations stated in § 74, a judgment in a contested action may be avoided if the judgment:
(a) Resulted from corruption of or duress upon the court or the attorney for the party against whom the judgment was rendered, or duress upon that party, or
(b) Was based on a claim that the party obtaining the judgment knew to be fraudulent.
(2) A party seeking relief under Subsection (1) must:
(a) Have acted with due diligence in discovering the facts constituting the basis for relief;
*193(b) Assert Ms claim for relief from the judgment with such particularity as to indicate it is well founded and prove the allegations by clear and convincing evidence; and
(c) When his claim is based on falsity of the evidence on which the judgment was based, show that he had made a reasonable effort in the original action to ascertain the truth of the matter.
Restatement (seconb) of Judgments § 70 (1982). The comments to section 70 show that the distinction between extrinsic and intrinsic fraud must be carefully defined and applied and that the ultimate goal of revisiting a judgment is to search for “incontestable proof as to truth of the underlying matter in issue.” Id. § 70 cmt. d.
Derek’s petition for review of the judgment asserts that it was based on a claim that Virginia, the party obtaining the judgment, knew to be fraudulent, ie., her claim that Derek was the biological father of her child. Id. § 70(1)(b). It further asserts facts that meet the requirements of subsection (2) of section 70. Id. § 70(2). Derek believes that he can show by clear and convincing evidence, ie., a DNA test, that the judgment is erroneous.1 He should be permitted that opportunity at a trial on the merits of his petition. Otherwise, we “compound the injustice of its result on the merits with the injustice of the means by which it was reached.” Id. § 70 cmt. a.
CURRENT LEGISLATION
Granting Derek a hearing on his petition is supported by recent enactments by which the Legislature has expressed a policy of allowing otherwise final judgments to be overturned when DNA evidence conclusively demonstrates a factual error.
First, effective September 1, 2001, section 160.217 of the Family Code “authorizes a man who executed a voluntary statement of paternity before September 1, 1999, and who on the basis of that statement, is the subject of a final order declaring him to be a parent of the child to file a suit affecting the parent-child relationship to contest the statement on the basis of fraud, duress, or material mistake of fact. The bill sets forth provisions regarding court procedures in a suit filed by a man to contest a voluntary statement of paternity, and the setting aside of final orders declaring paternity of the man and related orders of the court.”2 [Emphasis added]. Although the bill is limited in scope, it follows the principle that “scientifically accepted parentage testing” should be given effect even if a prior judgment made a contrary determination and even when that judgment came about because the person agreed to it. The bill provides: “if the court finds that at least 99 percent of the male population is excluded by the test ordered under Subsection (c) and that the man who executed the voluntary statement of paternity is excluded from the possibility of being the child’s father, the court shall set aside: (1) the final order declaring the man to be a parent of the child; and (2) any other order with respect to the child that was rendered on the basis of the voluntary statement of paternity.” [Emphasis added].
*194Second, the Legislature added Chapter 64 to the Code of Criminal Procedure to allow a convicted person to subject evidence containing biological material to “forensic DNA testing” when certain conditions are present, including that testing was not previously done because the technique was not available or was not technologically capable of providing probative results. The procedure is available even to one who pled guilty or nolo contendere, and if the conditions are met, is mandatory.3 A post-conviction innocence claim based on the results of favorable forensic testing is authorized, even though a similar claim has already been rejected. By this enactment, the Legislature recognized the power of DNA testing to correct mistakes in the criminal justice system.
CONCLUSION
Finality of judgments is a laudable and desirable concept which promotes stability in society and in the judicial system. But, it is not the “be all, end all.” We have painfully learned that our system of justice is not perfect. It does not always find the “truth”; it does not always achieve “justice.”
Based on existing precedents, the Restatement of Judgments, and public policy trends evolving in the Legislature, I would reverse the judgment and remand the cause for trial on the merits of Derek’s petition. Because the majority does otherwise, I respectfully dissent.
. The test results are in the record: "The alleged father, Derek Ince, is excluded as the biological father of the child, [R.I.] They appear to satisfy the search for "incontestable proof as to truth of the underlying matter in issue" contemplated by the Restatement. Restatement (second) of Judgments § 70 cmt. d (1982).
. Quote is from the Bill Analysis of the Committee Substitute for House Bill 638, 77th Legislature, Regular Session. The text and analyses of Senate and House Bills can be found through http://www.capi-tol.state.tx.us/tlo/billnbr.htm by entering the bill number.
. Senate Bill 3, 77th Legislature, Regular Session. The Enrolled Analysis for this bill states: "Texas statutes regulating the use of biological evidence, particularly evidence containing DNA, have been surpassed by developments in the science of biological evidence and other related technologies, unnecessarily inhibiting the use of such evidence. S.B. 3 establishes procedures for the preservation and use of evidence containing DNA and postconviction DNA testing.”