dissenting.
I respectfully dissent. Under the applicable Tex.Fam.Gode sec. 11.03 in effect at the time the mother (appellant’s wife) filed her suit for divorce naming the appellee as the alleged father, and at the time the appellee filed his paternity suit, a suit affecting the parent-child relationship could be brought by “any person with an interest in the child.” Section 11.03 includes in its definition of persons who have an interest in the child, any person named in section 11.09(a) of the Family Code as being entitled to service of citation. Section 11.09 provides that in a suit to determine the paternity of a child, the alleged father is entitled to citation and notice, unless the alleged father was the petitioner.
The appellee was not a petitioner in the divorce suit, but he was named as the alleged father of the minor child, and therefore, became a person who has “an interest in the child,” giving him standing to bring a suit affecting the parent-child relationship. Tex.Fam.Code Ann. sec. 11.09(a)(9); Pratt v. Texas Dep’t of Human Resources, 614 S.W.2d 490, 495 (Tex.Civ.App.—Amarillo 1981, writ ref’d n.r.e.); See Harris County Child Welfare Unit v. Caloudas, 590 S.W.2d 596 (Tex.Civ.App.—Houston [1st Dist.] 1979, no writ).
In my opinion, appellee’s being cited and served with a divorce petition, which included the wife’s paternity action against him, conferred standing upon him to file his own paternity action. The divorce and paternity causes of action filed by the wife and ap-pellee’s paternity cause of action were consolidated on August 8, 1985, and appellee became a party as well as a person with standing to bring his own cause of action. The later severance of the paternity cause of action does not affect appellee’s status. See Wilson v. Wilson, 601 S.W.2d 104 (Tex.Civ.App.—Dallas, no writ).
The court in Young v. Young, 545 S.W.2d 551 (Tex.Civ.App.—Houston [1st Dist.] 1976, writ dism’d), stated that an alleged father of an illegitimate child is entitled by section 11.09 to service of citation upon commencement of a suit affecting the parent-child relationship between the child and any other person. The court then went on to say that “the father then may seek voluntary legitimation under sec. 13.01.” See In re K., 535 S.W.2d 168, 169 (Tex.), cert. denied, 429 U.S. 907, 97 S.Ct. 273, 50 L.Ed.2d 189 (1976).
With regard to appellant’s claim that the court erred in entering judgment for the appellee in the paternity suit, after having named the appellant the legitimate father of the child in the divorce judgment, the trial court stated, prior to the evidence being presented on the paternity issue, “I’m going to accept their agreement and sever you out, and you are going forward in a straight out paternity suit.” The court then proceeded to allow testimony about the agreement and the suit affecting the parent-child relationship. The wife was asked:
Q. And is it your position that the three children are legitimate of the marriage by virtue of the fact that they were bom during the marriage?” [Emphasis added.]
A. Yes.
The decree of divorce contains the following language:
The court further finds that these children are the legitimate children of the marriage by virtue of the fact that they were bom during the marriage. [Emphasis added.]
This is not a finding that the appellant was the biological father, and is thus not res judicata on that issue. The action challenging paternity brings this issue into focus. Once the presumption of paternity is rebutted and the court finds that the appel-lee is the biological father of this child, it automatically terminates whatever legal re*726sponsibilities exist in the “legal” father of the child, shifting those legal responsibilities to the natural father.
The majority argues that only the husband or wife may deny paternity of a legitimate child under Tex.Fam.Code Ann. sec. 12.06. I would hold that the alleged father obtained the right to bring his own independent paternity suit, apart from the provisions of chapter 13 of the Family Code governing voluntary legitimation suits of illegitimate children, by virtue of his being a person with an interest in the child under former section 11.03 and being a person entitled to service under section 11.09. That interest and standing to bring suit was not extinguished by the court’s severance of the paternity action from the divorce suit. Further, I do not agree that the record establishes that the wife abandoned her paternity suit. The consent judgment disposed only of the divorce issues and did not dispose of the paternity issues. A finding in the divorce judgment that the child is legitimate, merely by the fact of its birth during the marriage, should not preclude the alleged father from showing that he was, in fact, the biological father of the child.
I would hold that the appellee had standing to bring his paternity action.