dissenting.
I respectfully dissent. The majority would allow a biological father to argue to a jury that the laws of this State presume that the mother’s husband is the child’s father and then prevent the child from rebutting that argument by offering a judicial decree that scientifically accepted paternity tests have proven that the mother’s husband is not the father of the child.
The majority opinion would allow the courts of this State to hinder an illegitimate child’s attempt to establish a legal relationship with his or her biological father; a relationship that gives the child rights that the State should affirmatively act to protect. I would hold that the final judgment in the related lawsuit, establishing that Mr. Noe Silva is not the father of E.L.S., is relevant to issues placed before the jury and is admissible under Tex.Fam. Code .Ann. § 12.02(b) (Vernon Supp.1993) to rebut the presumption that E.L.S. was Mr. Silva’s child. Accordingly, I would sustain appellant’s sixth point of error, reverse the judgment of the trial court and remand the case for a new trial.
The prior judgment which Mrs. Silva offered as evidence that Mr. Silva is not E.L.S.’s father is relevant to the issues involved in this case. Evidence is relevant if it merely has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Tex.R.Civ. Evid. 401. A piece of evidence does not have to rise to any level of conclusiveness to be relevant. Appellees contended at trial that 1) E.L.S. was born to Mrs. Silva during the marriage to Mr. Silva, 2) Mr. and Mrs. Silva are still married, and 3) Mr. and Mrs. Silva had two children after E.L.S. was born. Evidence that Mr. Silva is not E.L.S.’s father has some tendency to make more probable the fact that E.L.S. was fathered by another man with whom Mrs. Silva had sexual intercourse.
Appellees argued that under Texas law, a child born during a marriage is presumed to be the biological child of the husband. See Tex.Fam.Code Ann. § 12.02(a) (Vernon Supp.1993). That presumption may be rebutted only by clear and convincing evidence. Tex.Fam.Code Ann. § 12.02(b). A blood test which positively excludes the *820alleged father is clear and convincing evidence of non-paternity. In the Interest of S.C.V., 750 S.W.2d 762, 764 (Tex.1988). The presumption is also rebutted by a court decree establishing paternity of the child by another man. Tex.Fam.Code Ann. § 12.-02(b).
In this case, appellants offered a final decree rendered by the 138th District Court of Willacy County which established the non-paternity of Mr. Silva to rebut the presumption that Mr. Silva was E.L.S.’s biological father. The 138th District Court’s decree states in part as follows:
On April 15, 1991, in response to the prior order of this Court, ordering all parties to appear in person or by counsel, a pretrial conference was held. At the conclusion of the pre-trial conference the Court found that paternity tests show, by clear and convincing evidence, that NOE SILVA is not the biological father of the child, [E.L.S.]
The trial court refused to allow the decree of non-paternity into evidence.
We should rationally construe Tex.Fam. Code Ann. § 12.02(b) to permit a judicial decree of non-paternity to be admissible to rebut the presumption of paternity. The State has an important interest in the adjudication of parent-child relationships and desires to act in the best interest of children. See Attorney General of Texas v. Lavan, 833 S.W.2d 952, 954 (Tex.1992). Accordingly, the Legislature created a procedure which requires a higher burden of proof and mandated certain procedures and evidence to ensure valid findings of non-paternity. In cases in which the mother, the child, or the presumed father seek to deny paternity of the presumed father, the court must conduct pretrial proceedings and order scientifically accepted paternity tests according to Tex.Fam.Code Ann. §§ 13.02-13.03 (Vernon Supp.1993). Such paternity tests can verify non-paternity to an absolute certainty, even though they cannot verify paternity to an absolute certainty. Absurd results would flow from a construction of the statute that judicial decrees of non-paternity founded upon clear and convincing evidence, i.e., scientifically accepted paternity tests, do not rebut the presumption of paternity.
The only remaining question is whether the judgment is admissible against a stranger to the original proceeding. Ordinarily, judgments are not admissible to prove the matters adjudicated unless the parties and the subject matter in each suit are identical. John Deere Co. v. May, 773 S.W.2d 369, 374 (Tex.App.—Waco 1989, writ denied); Allen v. Great Liberty Life Ins. Co., 522 S.W.2d 247, 251 (Tex.Civ.App.—Eastland 1975, writ ref’d n.r.e.). However, a judgment is admissible against a stranger to prove the fact and legal consequences of its existence. McCamant v. Roberts, 66 Tex. 260, 1 S.W. 260, 261 (1886); Allen, 522 S.W.2d at 251; 50 C.J.S. § 821 (1955). A legal consequence of a decree of non-paternity is the rebuttal of the presumption of paternity; in fact, the consequence of a decree of non-paternity is that there is no longer a legal parent-child relationship.
A stranger to an adjudication of non-paternity is not precluded from relitigating the issue of paternity. Attorney General of Texas v. Lavan, 833 S.W.2d 952, 955 (Tex.1992). A ruling that a judicial decree rebuts a presumption of paternity does not necessarily preclude a stranger from litigating the issue of paternity in a subsequent suit, it only removes the presumption.
A presumption is a rule of law which draws a particular inference as to the existence of one fact, not actually known, arising from its usual connection with other particular facts which are known or proved. Beck v. Sheppard, 566 S.W.2d 569, 571 (Tex.1978). Presumptions compel the trier of fact to reach a conclusion in the absence of evidence to the contrary. Farley v. M M Cattle Co., 529 S.W.2d 751, 756 (Tex.1975). Evidence rebutting the presumption renders it void, but the facts underlying the presumption may still be used by the trier of fact to find the fact which the presumption would compel in absence of rebuttal evidence. Prudential Ins. Co. of Am. v. Uribe, 595 S.W.2d 554, 562 (Tex.Civ.App.—San Antonio 1979, writ ref’d *821n.r.e.). Consequently, appellees in this case can still argue the marriage as a fact from which the jury can infer Mr. Silva’s paternity of E.L.S.
I would hold that the trial court erred by refusing to admit the prior decree of non-paternity into evidence. Looking at the entire record, I find that the only evidence offered at trial was Mrs. Silva’s uncontro-verted testimony that she was separated from her husband for a period which coincided with E.L.S.’s gestation, that she only had intercourse with Mr. Enz during the relevant period, and that she was married to Mr. Silva at the time.
Appellees stated in opening argument:
I think you will see that the only thing you are going to be hearing is the testimony of a lady whose motives are completely questionable, who admits to adultery, who is here attempting to have the most critical interest in the State of Texas completely wiped away, and that is to create illegitimacy as opposed to creating legitimacy.
The Court will tell you in the instructions that this little girl, as she sits here, has a father. Her father is Noe Silva. The state says she has a father, that Noe Silva is her father, because the evidence will demonstrate she was born of a marriage. When she was conceived her mother was married to Noe Silva.
* * * * * *
I think you need to be aware of the fact that they not only have a burden to try and establish paternity by a certain standard, we can’t forget about Noe Silva, because Noe Silva today is the father. The presumption exists and is created by law, and they must produce evidence that he is not. There is only certain ways that they can do that. The Court will instruct you as to what those ways are.
I submit to you that after you hear all of the evidence and after the Court provides you with the instructions, you are going to find that the law is what’s right, that Noe Silva is the father, and that they cannot overcome that presumption.
Appellees stated in closing argument:
Is Noe a part of this action? No, he’s not. You can consider that. Where is Noe, the father to this beautiful little girl?
******
If you believe Noe is the father, since they were married at the time, she can’t have two fathers. It’s just as simple as that. You can consider all these things. ******
We sure know that Noe Silva is a good man. He continues to be married to her. We know that when a child is born of a husband and wife that the community is going to believe that that is the child of that marriage. That’s why the law is the way it is. You can’t have two fathers.
Given the arguments of appellees and the evidence adduced at trial, I find that denying appellant the right to produce competent evidence rebutting a presumption of paternity was error reasonably calculated to cause and probably did cause the rendition of an improper judgment. Tex. R.App.P. 81(b)(1). I would sustain appellant’s sixth point of error, reverse the judgment of the trial court, and remand the case for a new trial.
For the reasons stated above, I respectfully dissent.