dissenting.
I respectfully dissent. I do not do so on the basis that the law as cited by the majority is incorrectly cited or incorrectly applied. Rather I do so on the grounds that in this case the result reached by the majority is manifestly unjust because of the current state of the law, and, accordingly, it is time for that law to change.
The majority has adequately set forth the facts that exist in this case. Additionally, it should be noted that the record does reflect that at the time of the trial of the paternity suit L.D.V. was still married to J.L.V., but by the time the case was tried on the issues of child support and related matters, she and her husband were divorced. Accordingly, as articulated by the majority, L.D.V. was faced with the burden of overcoming the statutory presumption that S.C.V. was the legitimate child of J.L.V. since the child was conceived and bom during the time that L.D.V. and J.L.V. were married. This presumption of legitimacy of a child bom during the course of a lawful marriage is one of the strongest known to our law and can be rebutted only by clear and convincing evidence showing the impossibility that the child was sired by the presumed father. Joplin v. Meadows, *880623 S.W.2d 442 (Tex.App. — Texarkana 1981, no writ). Currently, the only two exceptions permitted in Texas to show the impossibility that the child was sired by the presumed father are non-access and impotency. Joplin, 623 S.W.2d at 443. The burden of proof is by clear and convincing evidence. Under the no-evidence point of error brought by the putative father, the majority holds that the mother, L.D.V., failed to carry her burden of rebutting the presumption and as a matter of law finds that J.Y.W. is not the father, and the trial court’s judgment is reversed and rendered to that effect.
Although the record does reflect that L.D.V. and J.L.Y. were divorced by the time the support issues were heard by the trial court, the record does not reflect whether that divorce decree provided for either voluntary or court-ordered support payments by J.L.Y. of the child, S.C.V. The majority refers to the blood test of J.L.V., which was excluded by the trial court. This blood test reflected that it was a biological impossibility for J.L.V. to be the natural father of the child, S.C.V. Accordingly, the possibility exists that J.L.V. could either file suit under Section 12.06 of the Family Code denying paternity, or respond to a suit for support by L.D.V. on behalf of S.C.V. denying paternity and relying on the blood test as conclusive proof that he is not the biological father of S.C.V., and prevail. See TEX.FAM.CODE ANN. § 13.05(a) (Vernon Supp.1987); In re E.G.M., 647 S.W.2d 74, 78 (Tex.App. — San Antonio 1983, no writ). This would result in the anomalous situation that as a matter of law S.C.V. has no father.
As indicated above, at this time the state of the law in Texas is that there are only two ways to show impossibility that the child was sired by the presumed father, and those are non-access and impotency. In my view, it is time to change the law and hold that there should be a third way to rebut the presumption of legitimacy. The result of a blood test showing biological impossibility should furnish clear and convincing evidence of impossibility that the child was sired by the presumed father.
In addition to being relevant to the central issue in non-paternity cases, blood tests, when properly conducted and reported, are reliable and, in fact, generally superior to other sources of information as to biological fatherhood. The importance of such scientific reports is heightened in paternity suits because of the usual lack of eyewitnesses and the often self-serving testimony of the parties. Where the probability of paternity is zero, the evidence should be accepted as conclusive in law. The public policy behind the legitimacy presumption is no longer persuasive in the face of nearly-infallible blood test evidence.
The legislature has indicated its approval of such blood test evidence by making such evidence conclusive in pre-trial proceedings and paternity suits if the tests show by clear and convincing evidence that the alleged father is not the father of the child, TEX.FAM.CODE ANN. § 13.05(a), and as stated the courts have recognized that in paternity suits blood tests may be used to conclusively prove that a man is not the biological father of a certain illegitimate child. In my view as long as there is a question as to who is the biological father of the child, there is no sound reason for not giving full weight to reliable blood test evidence which conclusively excludes biological fatherhood. Excluding or arbitrarily lessening the weight of reliable blood test evidence simply makes proof of biological impossibility more difficult, not irrelevant. Accordingly, I would hold that evidence of properly conducted blood tests which is scientifically conclusive as to paternity exclusion is likewise legally conclusive as to non-paternity.
As applied in this case I would hold that the blood test of the husband, if properly authenticated, was admissible in evidence and should be conclusive as to the biological impossibility of his being the father of the child. Based upon my analysis, there was no error iri failing to submit a special issue requiring the jury to find non-access of the husband to the mother at the time the child would have been conceived. Point of error number three should be overruled.
*881Based upon the foregoing premises, it is, therefore, my opinion that the trial court was correct in submitting the single special issue as to whether the appellant, J.Y.W., is the natural father of the child in question. J.Y.W. asserts in points of error number one and two that there is no evidence or, alternatively, insufficient evidence to support the jury’s positive answer to the special issue. In deciding a “no evidence” point, which is a question of law, we consider only that evidence and reasonable inferences therefrom, which, viewed in its most favorable light, support the jury finding, and we must reject all evidence or reasonable inferences to the contrary. Glover v. Texas General Indemnity Co., 619 S.W.2d 400, 401 (Tex.1981). Utilizing this standard, and upon a review of the record in this cause, there is some evidence to support the jury’s finding that J.Y.W. is the father of the child. Point of error number one should be overruled. When this Court is called upon to review the evidence on an insufficiency point, we must consider and weigh all of the evidence, including any evidence contrary to the jury’s verdict. Burnett v. Motyka, 610 S.W.2d 735, 736 (Tex.1980). In the application of this standard, we must determine whether the verdict is so contrary to the overwhelming weight of all evidence as to be clearly wrong and unjust. As stated, all the evidence in the case must be reviewed, and such review must be accomplished regardless of whether the record contains some evidence of probative force in support of the verdict. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1952). In my opinion, a review of the evidence in its totality shows that there is sufficient evidence to support the jury’s verdict and its answer to the special issue is not so contrary to the weight of evidence as to be manifestly unjust. I would overrule point of error number two.
In point of error number four, J.Y.W. complains that the trial court erred in awarding support to the child past the age of 18 and relies on Sections 14.05(a) and 14.05(b) of the Family Code. It is clear that the trial court is without authority to award support to a minor child past the age of 18 unless the express provisions of sec. 14.05(b) are applicable. Such is not the case here and it was, therefore, error for the trial court to award support past 18 years of age. In re Cobble, 592 S.W.2d 46, 48-49 (Tex.Civ.App. — Tyler 1979, writ dism’d); see also Ex parte Williams, 420 S.W.2d 135, 136 (Tex.1967). Point of error number four should be sustained and the judgment of the trial court reformed to order support in the amount specified to the child up to the age of 18 years only.
In point of error number five, J.Y.W. asserts that the trial court erred in requiring him to establish and fund a $200,000 educational trust to provide additional support for the child until age 25 and ordering, at the time the child reaches the age of 25, that the balance of principal and interest, if any, be turned over to the child. First, section 14.05(a) of the Family Code provides, in addition to periodic support, that the court may order a parent obligated to support a child to set aside property to be administered for the support of the child in the manner and by the person specified by the court in the decree. This provision provides support for the court’s order of the establishment of the trust fund. However, the period of support is again limited to the age of 18 years, and the court cannot divest J.Y.W. of this property by further ordering that it is to be awarded to the child when she reaches majority. Eggemeyer v. Eggemeyer, 554 S.W.2d 137, 138 (Tex.1977). I would sustain point of error number five and reform the trial court’s judgment to require that the educational trust, as established, terminate when the child reaches the age of 18 years and, upon termination, any remaining principal and interest in such trust revert to J.Y.W.
Based upon the foregoing, I would reform the trial court’s judgment and as reformed affirm.