In re Rodriguez and the Office of the Attorney General
was a case out of Dallas, where in July 2007 the Attorney General filed a child support action
relating to two children. In October, the mom filed for divorce
and the two actions were consolidated. The dad filed a counter petition and denied paternity of the children and requested paternity tests, asserting that another man claimed to be the father.
All parties acknowledged that both children were born during the marriage and that both children were over the age of 4 when the divorce action was commenced. After a hearing, the Administrative Judge ordered testing but did not specify a date.
The attorney general and the mother appealed to the presiding judge who affirmed the AJ. AG and the mother sought mandamus relief asserting that testing should not be completed because the father was the presumed father
and was barred from denying paternity based on the statute of limitations under the Texas Family Code.
The court of appeals denied a requested stay of the testing because there was no immediate threat of harm as no date for testing had been specified. The mom appealed and the presiding judge ordered it done instanter. Mom appealed.
The testing facility processed the results in violation of the Court of Appeal's order. The appellate court ordered the results sealed and to be sent to them. In regards to the mandamus proceeding, the dad argued that the statute had been tolled as a result of the mom's fraud in failing to disclose her relations with another man.
The mandamus was granted, and the court ruled that this was a matter for the legislature to take up whether or not the truthful father was ever discovered.The genetic samples were ordered to be destroyed.