In re OAG (Tex.App- Houston [1st Dist.] Dec 11, 2008)(Taft)
(
bill of review, prior factually false paternity adjudication upheld, parentage proceeding)
GRANT PETITION FOR WRIT OF MANDAMUS: Opinion by
Justice Taft  
Before Justices Taft, Keyes and Alcala
01-08-00670-CV  In re The Office of the Attorney General of Texas
Appeal from 310th District Court of Harris County
Trial Court
Judge: Hon. Lisa Millard

IN RE THE OFFICE OF THE ATTORNEY GENERAL, Relator

Original Proceeding on Petition for Writ of Mandamus

O P I N I O N

     Relator, the Office of the Attorney General (“OAG”), complains of the October 13, 2008 “First
Amended Order Vacating Default Judgment” and of the August 8, 2008 “Order for Parentage
Testing” signed by the trial judge Footnote upon the granting of the bill of review of the real party
in interest, Robert E. Phillips Jr. We determine (1) whether the trial judge abused her discretion in
granting the bill of review and in vacating the underlying default judgment adjudging Phillips’s
paternity; (2) whether the trial judge abused her discretion in ordering paternity testing for
purposes of retrial of the paternity action; and (3) whether an adequate remedy by appeal exists
for either order. We conditionally grant the petition for writ of mandamus.

Background

     This mandamus proceeding arises out of two interlocutory orders that together granted a bill of
review, set aside a default judgment of paternity, reinstated the paternity suit, and ordered
paternity testing for purposes of retrial.

     On August 1, 2007, the OAG filed a suit affecting the parent-child relationship (“SAPCR”) to
establish the parent-child relationship between Phillips and K.D.P., the child born to Beverly J.
Duncan on October 28, 2004. It was undisputed that Phillips was served with citation on September
10, 2007, but that he did not file an answer. The SAPCR case was set for hearing on November
15, 2007, and Phillips admitted receiving notice of the hearing date.

     Phillips did not appear at the November 15 hearing, and the trial court rendered a default
judgment against him that same day. The default judgment, among other things, established the
parent-child relationship between Phillips and K.D.P.; established conservatorship of K.D.P.; and
ordered Phillips to pay child support, both prospectively and retroactively.

     The OAG and Phillips disputed in the later bill-of-review proceedings whether the trial-court
clerk notified Phillips of the default judgment. Nonetheless, Phillips admitted that, on December 3,
2007—within the trial court’s plenary power—he received notice that his wages were being
garnished pursuant to the default judgment. It is undisputed that Phillips, who had not hired
counsel at that point, did not file a motion for new trial in the suit or appeal the default judgment.

     Instead, on December 21, 2007, Phillips administered a DNA test to himself and K.D.P. and
sent the samples off for testing. The resulting paternity test report, dated December 28, 2007,
excluded him as K.D.P.’s father. The report contained a notation that “[f]ailure to comply” (as
happened here) with chain-of-custody measures “may render this report inadmissible in a court of
law.” The report was also not in admissible form and did not meet all of the Texas Family Code’s
substantive requirements. See Tex. Fam. Code Ann. §§ 160.503(a), (b), 160.504(a) (Vernon
2002).

     On March 25, 2008, Phillips—by then represented by counsel—timely filed a petition for bill of
review to set aside the default judgment and to vacate the wage-withholding order. See Tex. R.
Civ. P. 329b(f). He also sought attorney’s fees and “exemplary damages” from Duncan for acting
with “conscious indifferences” [sic] for not having told him that he was not the only “recipient of her
sexual activity” and thus not necessarily the father of K.D.P. The bill-of-review petition’s allegations
were supported by Phillips’s affidavit:

I was unable to attend the trial in this cause due to being trapped out of state under blizzard snow
conditions. My inability to attend the trial in this case was not due to any fault or negligence on my
part, but [was] a result of severe weather conditions that made travel impossible. Once I received
notice of the wage withholding order, I immediately did paternity testing with the child in this case
and learned that I was excluded as the biological father of [K.D.P.].

     The OAG answered and raised various “affirmative defenses” that parallel the arguments that it
raises before us. The OAG also specially excepted to the bill-of-review petition for not alleging the
basic elements of a bill of review.

     An associate judge heard the bill of review on April 30, 2008. Phillips testified that:

●he was notified of the November 15, 2007 hearing date;



●he went to Iowa from November 3, 2007 through November 22, 2007 to work;



●he was “snowed in” in Iowa around the time of the hearing;



●Duncan had nothing to do with the fact that he was in Iowa, and she did not prevent him from
attending the hearing;



●he left messages on an answering machine at the OAG’s office on November 14 and 15, 2007
that he could not make the hearing; Footnote



●the OAG did not call him back;



●he “was hoping” that the OAG would reset the hearing, based on his phone messages;



●he heard nothing until he received the notice of wage withholding on December 3, 2007;



●he did not file a motion for new trial;



●he learned from the December 28, 2007 genetic-testing report that he was not K.D.P.’s father; and



●the delay in his hiring counsel and filing his bill-of-review petition was due to his need to raise
money to hire counsel.

     The associate judge ruled that the bill of review be denied and the case be dismissed,
concluding that “the prima facie requirement for establishing prima facie evidence and finding a
meritorious defense has not been met.” On May 1, 2008, the associate judge signed a report, in
the form of a proposed “order denying bill of review,” that denied the bill of review without stating
his reasons and did not contain findings or conclusions. See Tex. Fam. Code Ann. § 201.011(a)
(Vernon Supp. 2008).

     Phillips “appealed” the associate judge’s report the next day by requesting a de novo hearing
before the referring court. See id. § 201.015 (Vernon Supp. 2008). The OAG objected to the
request for a de novo hearing because (1) the pertinent statute required that the request specify
the issues that would be presented to the referring court Footnote and (2) the issues that Phillips
specified were irrelevant to a bill-of-review proceeding. At the May 21, 2008 hearing, without taking
any evidence, the trial judge sustained the OAG’s objection and orally adopted the associate judge’
s proposed order. That same day, the trial judge signed an order reciting that it “sustained [the
OAG’s] Oral Motion to Dismiss” and adopted the associate judge’s ruling as her own. See id. §§
201.013(b), 201.014(a)(1) (Vernon Supp. 2008).

     On June 18, 2008, Phillips moved for new trial of the May 21, 2008 ruling, and the OAG
responded. The motion for new trial was heard on August 1, 2008. At the hearing, Phillips
generally testified to the matters to which he had testified at the April 30 hearing, but added that
his employer would not let him off his job in Iowa to attend the November 15 hearing and that
Duncan “was not excited at all” and “wasn’t surprised” when he told her that the paternity test had
excluded him as the father. At the close of evidence, the trial judge orally granted the motion for
new trial, ordered paternity testing, set “the case” for trial on October 13, 2008, and set the entry
of the new-trial order for August 8, 2008.

     On August 7, 2008, the OAG moved for reconsideration and to stay genetic testing. On August
8, 2008, the trial judge heard the OAG’s motions and considered the entry of the new-trial order. At
the start of the hearing, the OAG noted that Phillips’s proposed order adjudicated the merits of the
bill of review, rather than purporting just to grant the new-trial motion and to reinstate his request
for a de novo hearing on his bill of review. However, the OAG did not object. Additionally, when the
trial judge later advised the OAG that it had granted Phillips’s bill of review on August 1, 2008—
rather than just reinstating his request for a de novo hearing on his bill of review—the OAG did not
object, but instead proceeded to discuss the merits of the bill of review, as if it had been granted
on August 1. Phillips did likewise. The trial judge’s August 1 order granting a new trial thus became,
as of August 8, an order granting the bill of review, and the parties then tried by consent
reconsideration of that ruling. At the end of the hearing, the trial judge verbally denied the OAG’s
motions.

     That same day, the trial judge signed an order entitled “Order Vacating Default Judgment,”
which vacated the November 15, 2007 default judgment. The order also contained the following
recitation under the heading “Findings”: “The Court finds that [Phillips] has made a prima facie
showing of a meritorious defense and hereby grants his Bill of Review and vacates the November
15, 2007 Default Judgment in this cause.” (The trial judge struck by hand the indicated text.) The
order then set the trial “in this cause”—ostensibly now the adjudication of paternity itself, as there
were no other matters to be tried after the bill of review had been granted and the default judgment
set aside—for October 13, 2008. This August 8 order is the first order of which the OAG complains
in this proceeding. Also on August 8, 2008, the trial judge signed a separate order requiring that
genetic testing be completed before 5:00 p.m. that same day. The OAG also complains of this
second August 8 order in this proceeding.

     On August 14, 2008, the OAG filed its petition for writ of mandamus, complaining about the trial
judge’s two orders of August 8, 2008. On its motion, we stayed the order for genetic testing
pending the disposition of the mandamus proceeding. Footnote On October 31, 2008, Phillips filed
a response to the OAG’s petition for writ of mandamus.

     After the mandamus petition was filed, the trial court rendered a series of oral and written
rulings that culminated in a “First Amended Order Vacating Default Judgment,” signed October 13,
2008. The October 13 amended order was identical to the August 8 order vacating the default
judgment in all material respects except that it retained the language about granting the bill of
review that had been struck from the “findings” in the August 8 order and added decretal language
that “the Bill of Review is granted as of August 1, 2008.” This amended order superseded the
August 8 order and moots the OAG’s complaint about the August 8 order. See Anderson v. Teco
Pipeline Co., 985 S.W.2d 559, 562 (Tex. App.—San Antonio 1998, pet. denied) (holding that later
judgment, styled “amended final judgment,” implicitly vacated earlier judgment, styled “final
judgment”); see also In re Messervey Trust, No. 04-00-00700-CV, 2001 WL 55642, at *3 (Tex. App.
—San Antonio Jan. 24, 2001, orig. proceeding) (not designated for publication) (“We have no
jurisdiction to issue a writ of mandamus based on the July 27 order because it has been super[s]
eded by the September 1 order, rendering the earlier stay moot.”). However, the OAG also
complains in this proceeding about the October 13 amended order, and it is this order that we
consider first. See id. at *3 (considering mandamus petition to extent that it challenged later order
that superseded earlier order). As for the order granting paternity testing, the record indicates that
it was vacated sua sponte on August 14, but that it was reinstated by order of the trial court on
September 22, 2008. The OAG continues to challenge the reinstated order granting paternity
testing, and we consider this order as well.

Mandamus Standard

     “We grant the extraordinary relief of mandamus only when the trial court has clearly abused its
discretion and the relator lacks an adequate appellate remedy.” In re Team Rocket, L.P., 256 S.W.
3d 257, 259 (Tex. 2008).

Standards for Bill of Review

A.      Pleading

     “A bill of review is an independent equitable action brought by a party to a former action
seeking to set aside a judgment, which is no longer appealable or subject to motion for new trial.”
Baker v. Goldsmith, 582 S.W.2d 404, 406 (Tex. 1979). The bill-of-review petition “must allege
factually and with particularity that the prior judgment was rendered as the result of fraud, accident
or wrongful act of the opposite party or official mistake unmixed with his own negligence.” Id. at
408. “The [bill-of-review] complainant must further allege, with particularity, sworn facts sufficient to
constitute [a meritorious] defense . . . .” Id.

B.      Prima Facie Burden

     “[A]s a pretrial matter,” the complainant who is not alleging non-service Footnote must
additionally “present prima facie proof to support the contention” that he has a meritorious
defense, which has the purpose of assuring the court “that valuable judicial resources will not be
wasted by conducting a spurious ‘full-blown’ examination of the merits.” Id. Such a “prima facie
meritorious defense is made out when . . . the complainant’s defense is not barred as a matter of
law and . . . he will be entitled to judgment on retrial if no evidence to the contrary is offered,” which
determination is “a question of law for the court.” Id. at 408–09. “If the court determines that a
prima facie meritorious defense has not been made out, the proceeding terminates and the trial
court shall dismiss the case.” Id. at 409. “On the other hand, if a prima facie meritorious defense
has been shown, the court will conduct a trial.” Id.

C.      Complainant’s Burden at Trial on the Merits

     At the bill-of-review trial when, as here, the claimant does not allege non-service, Footnote “[t]
he complainant must open and assume the burden of proving that the judgment was rendered as
the result of the fraud, accident or wrongful act of the opposite party or official mistake unmixed
with any negligence of his own.” Id. Standing alone, “the fact that an injustice may have occurred is
not sufficient to justify relief by bill of review.” Temple v. Archambo, 161 S.W.3d 217, 224 (Tex. App.
—Corpus Christi 2005, no pet.).

The Granting of the Bill of Review

A.      Clear Abuse of Discretion

     For the following reasons, we hold that the trial judge clearly abused her discretion in rendering
the October 13 “First Amended Order Vacating Default Judgment.”

     1.       Fraud or Wrongful Act

     “Only ‘extrinsic fraud’ will support a bill of review.” Nelson v. Chaney, 193 S.W.3d 161, 165
(Tex. App.—Houston [1st Dist.] 2006, no pet.). “Extrinsic fraud is fraud that is collateral to the
matter being tried and prevents a litigant from having a fair opportunity to assert his rights at trial.”
Id. To the extent that the trial judge may have read Phillips’s petition to allege that Duncan acted
wrongfully by having concealed the possibility that someone else could have been K.D.P.’s father,
Footnote such matters have been repeatedly determined not to demonstrate extrinsic fraud and
thus not to support a bill of review. See id. at 166; In re Attorney Gen’l of Tex., 184 S.W.3d 925,
928 (Tex. App.—Beaumont 2006, orig. proceeding); Martindale v. Reno, 132 S.W.3d 462, 464–65
(Tex. App.—Eastland 2003, no pet.); Ince v. Ince, 58 S.W.3d 187, 191 (Tex. App.—Waco 2001,
orig. proceeding), overruled on other grounds by Ramsey v. State, 249 S.W.3d 568, 577 (Tex. App.
—Waco 2008, no pet.).

     2.       Official Mistake or Mistake or Accident of Opposing Party

     Phillips’s position concerning accident was that the bad weather and the “accidental
circumstances of his work out of state . . . [and] his inability to get permission from his employer to
return” precluded his attending the November 15 hearing. The “official mistake” that he contended
occurred was rendition of a default paternity judgment against him when he was not the father.
These allegations and their supporting evidence do not meet the standard for accident or official
mistake in the context of a bill of review. An “official mistake” merits the granting of a bill of review
when “the petitioner can demonstrate that the judgment resulted from his reliance on a court officer
who improperly executes his official duties.” Transworld Fin. Servs. Corp. v. Briscoe, 722 S.W.2d
407, 408 (Tex. 1987). “‘Accident’ implies a . . . joint responsibility, or freedom from fault, by both
parties through which, by mischance, the complainant failed to urge his or her position in the
former action.” Roy W. McDonald & Elaine Grafton Carlson, 5 Texas Civil Practice, Attacks on
Judgments, § 29:15, at 462–63 (2d ed. 1999); Roger S. Baugh Jr. & Paul C. Sewell, Equitable Bill
of Review: Unraveling the Cause of Action That Confounds Texas Courts, 48 Baylor L. Rev. 623,
634 (Summer 1996) (quoting McDonald & Carlson). Phillips’s pleading and proof of official mistake
and accident do not fit these criteria and thus will not support the granting of a bill of review.

     3.       Lack of Negligence by Phillips

     It was undisputed that Phillips failed to answer the SAPCR suit despite having been served with
citation. This was negligence that would preclude the granting of a bill of review. See Gone v.
Gone, 993 S.W.2d 845, 848 (Tex. App.—Houston [14th Dist.] 1999, pet. denied) (in appeal from
denial of bill of review to set aside no-answer default judgment of divorce, in which trial court found
that former husband presented no evidence as to why he failed to answer and in which former
husband admitted being served, holding, “[T]he trial court correctly concluded that [former
husband’s] own negligence in failing to file an answer, unmixed with any other, resulted in the
default judgment against him.”). Additionally, “[r]elief by bill of review is available only if a party has
exercised due diligence to pursue all adequate legal remedies against a former judgment and,
through no fault of her own, no adequate legal remedy was available.” Hesser v. Hesser, 842 S.W.
2d 759, 765 (Tex. App.—Houston [1st Dist.] 1992, orig. proceeding, writ denied) (combined
mandamus and appeal). It was undisputed that Phillips discovered the existence of the default
judgment (by virtue of the wage-withholding notice that he received on December 3) within the trial
court’s plenary power, yet he did not move for new trial or file a direct appeal. Accordingly, the
undisputed evidence showed that his own negligence contributed to the default judgment. See id.
at 766; see also Gold v. Gold, 145 S.W.3d 212, 214 (Tex. 2004) (“If a motion to reinstate, motion
for new trial, or direct appeal is available, it is hard to imagine any case in which failure to pursue
one of them would not be negligence” that would preclude bill of review).

B.      Inadequate Remedy By Appeal

     The order granting the bill of review in this case was interlocutory because it vacated the prior
judgment and reinstated the original cause; no appeal lies from this interlocutory order. See, e.g.,
Jordan v. Jordan, 907 S.W.2d 471, 472 (Tex. 1995). Just because an interlocutory order is
unappealable, however, does not mean that mandamus will lie to review it. “As a general rule,
mandamus does not lie to correct incidental trial court rulings when there is a remedy by appeal.”
In re Entergy Corp., 142 S.W.3d 316, 320 (Tex. 2004). “[T]he mere cost and delay of pursuing an
appeal will not, in themselves, render appeal an inadequate alternative to mandamus review.” Id. at
321. Nonetheless, “[i]n certain circumstances, . . . incidental trial court rulings can be corrected by
writ of mandamus” when “special, unique circumstances mandate[] the Court’s intervention.” Id.;
see In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex. 2004). What constitutes such
special, unique circumstances is determined by a “careful balance of jurisprudential
considerations” that seeks to answer whether “any benefits to mandamus review are outweighed
by the detriments”—for example, in “exceptional cases” in which mandamus review is needed “to
preserve important substantive and procedural rights from impairment or loss.” In re Prudential Ins.
Co., 148 S.W.3d at 136 (citations omitted).

     We first note that there is a split of authority among the courts of appeals—in cases not
involving pending paternity suits in which genetic testing has been ordered—as to whether
mandamus will lie to review the interlocutory granting of a bill of review. Footnote However, for
reasons that will become evident below, we need not resolve this split to determine this appeal. We
also note that three courts of appeals have held that mandamus lies to review the interlocutory
granting a bill of review that is rendered in the context of a paternity suit in which genetic testing is
ordered. Footnote We, too, determine that mandamus will lie over this order in this case, but we do
so for different reasons.

     It is by now clear that mandamus is available to review an order for paternity testing that is
erroneously entered before a parentage determination has been set aside. In re Rodriguez, 248 S.
W.3d 444, 454 (Tex. App.—Dallas 2008, orig. proceeding); In re Att’y Gen., 195 S.W.3d at 270–71;
see also Amanda v. Montgomery, 877 S.W.2d 482, 487 (Tex. App.—Houston [1st Dist.] 1994, orig.
proceeding). At least two reasons have been identified in support of such review: (1) the ordering
of paternity testing is a discovery order, and no adequate remedy by appeal exists for production
of unauthorized discovery (including discovery posing a heavy burden due to its being highly
sensitive and personal) because, once it is produced, its effects cannot be undone Footnote and
(2) revealing the results of genetic testing may, depending on the facts, cause permanent,
irreparable harm to the child. Footnote

     The trial court coupled its order granting the bill of review with an order requiring paternity
testing just so that the resulting evidence could be used upon retrial in the paternity suit. Of
course, because the default judgment is currently set aside upon bill of review, there is now no
longer any final parentage determination that would preclude paternity testing unless and until the
bill-of-review order is reviewed, found to be erroneous, and set aside. See Nelson, 193 S.W.3d at
167 (“The sole question before the trial court . . . was whether Nelson was entitled to relief by bill of
review as a matter of law. Had such a determination been made, thus allowing Nelson to re-litigate
the issue of paternity, it would have been appropriate to order DNA testing.”) (emphasis added).
The interlocutory grant of this bill of review is not subject to interlocutory appeal. See Jordan, 907
S.W.2d at 472. Review of this bill-of-review order can thus not occur until after final judgment in the
new paternity suit unless mandamus review is available now. Although delay in appellate review
alone is generally not enough to justify the issuance of mandamus, Footnote here, if review cannot
be had until after the paternity retrial, then the results of the paternity testing will necessarily be
divulged and used—and any harm arising from their revelation will occur—before an appellate
court can even determine if the default judgment could have been be set aside and the case
retried. This situation fits the parameters of what constitutes an inadequate remedy by appeal:
once the test results are divulged, the information that they contain cannot be retracted, and any
resulting harm to the child may be irreparable. Cf. In re Rodriguez, 248 S.W.3d at 454; In re Att’y
Gen., 195 S.W.3d at 270; see also Amanda, 877 S.W.2d at 487. The benefits to mandamus review
in this context thus outweigh the detriments. See In re Prudential Ins. Co., 148 S.W.3d at 136.

     For these reasons, we hold that no adequate remedy by appeal exists for this interlocutory bill-
of-review order and that, consequently, mandamus review is available.

The Ordering of Genetic Testing and Order Reinstating Same

     The trial judge ordered paternity testing only after she had granted the bill of review and
vacated the November 15, 2007 default judgment. The paternity-testing order was thus a discovery
order that was ancillary to the paternity suit that the judge had resurrected by her bill-of-review
ruling.

     Only the proper granting of a bill of review allows the trial court to set aside a prior final
judgment, not void on its face for want of jurisdiction, over which the court’s plenary jurisdiction has
expired. See Tex. R. Civ. P. 329b(f) (“On expiration of the time within which the trial court has
plenary power, a judgment cannot be set aside by the trial court except by bill of review for
sufficient cause . . . .”); see also Tidwell v. Tidwell, 604 S.W.2d 540, 542 (Tex. App.—Texarkana
1980, no writ) (providing that, when voidable judgment “has become final and the time has elapsed
for the filing of an appeal or an appeal by writ of error, the judgment can only be set aside by bill of
review timely filed.”). Because the trial judge abused her discretion in granting the bill of review,
she necessarily abused her discretion in vacating the default judgment. Once the amended order
vacating the default judgment is set aside pursuant to our decision, the default judgment
adjudicating Phillips’s paternity will again be the controlling judgment.

     “A trial court abuses its discretion when a child’s paternity has been legally established and it
orders genetic testing before a parentage determination has been set aside.” In re Rodriguez, 248
S.W.3d at 451; accord, e.g., In re Att’y Gen., 195 S.W.3d at 269; see also Amanda, 877 S.W.2d at
487. This line of authority applies by analogy to the paternity-testing order here because, after this
proceeding, the default judgment of paternity will again be in effect, and there will no longer be a
“live” paternity case to which the test results could be relevant. Cf. Nelson, 193 S.W.3d at 167 (in
appeal of denial of bill of review, after which ruling trial court nevertheless had ordered paternity
testing, concluding in dictum that trial court abused its discretion in ordering testing because “the
trial court’s order effectively facilitated the gathering of evidence to undermine a final judgment that
as a matter of law could not be upset.”).

     Because we hold that the trial judge abused her discretion in granting the bill of review and in
vacating the default judgment of paternity, we also hold that the trial judge abused her discretion in
ordering paternity testing and in signing the order reinstating that ruling.

Conclusion

     We conditionally grant the petition for writ of mandamus and order the trial judge to take the
following actions:

●to vacate its October 13, 2008 “First Amended Order Vacating Default Judgment”;



●to vacate its August 8, 2008 “Order for Parentage Testing”;



●to vacate its related September 22, 2008 “Order Reinstating Order Granting Motion for New Trial
and Vacating Default Judgment” in its entirety; and



●to maintain under seal the results of the genetic testing that are currently under seal with the trial
court and to grant the relief requested in the OAG’s August 22, 2008 “Motion for Protective Order
Regarding Genetic Test Information” immediately upon issuance of this Court’s opinion.



●to certify to the Clerk of this Court, in writing, within 10 days of the date of this opinion, that the
actions herein required have been completed.

     The writ will issue only if the trial judge fails to act in accordance with the orders contained
within this opinion.

     The Court’s August 18, 2008 stay order remains in effect until the trial judge complies with the
orders contained in this opinion.

     We overrule Phillips’s September 30, 2008 motion to order the sealed paternity-testing results
to be filed in this Court.

Tim Taft

Justice

Panel consists of Justices Taft, Keyes, and Alcala.