in the Interest of J.C., a Child

Opinion

In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________ No. 02-18-00029-CV ___________________________

IN THE INTEREST OF J.C., A CHILD

On Appeal from the 324th District Court Tarrant County, Texas Trial Court No. 324-577171-15

Before Sudderth, C.J.; Gabriel and Birdwell, JJ. Opinion by Justice Gabriel OPINION

P.A. (Peter)1 appeals from the trial court’s denial of his petition to adjudicate

parentage, which he brought to establish a father–child relationship with J.C. (Justin).

But Justin has a presumed father, and Peter filed this suit more than four years after

Justin’s birth. In such circumstances, with only two exceptions, section 160.607 of

the Texas Uniform Parentage Act (TUPA) bars an individual from commencing a suit

to adjudicate parentage. See Tex. Fam. Code Ann. § 160.607. The trial court found

neither exception applies in this case and thus denied Peter’s suit as untimely. In his

sole issue, Peter argues, as he did in the trial court, that he should not be barred from

bringing this suit based upon section 160.607 because that provision is

unconstitutional. The trial court disagreed. So do we. We therefore affirm.

I. BACKGROUND2

K.C. (Kelly) married I.C. (Ivan) on July 19, 2008, and they are still married.

They have lived together since their marriage and have never separated. Justin was

born to Kelly in July 2010; thus, Justin’s probable date of conception was in either

1 To preserve the privacy of the child, we identify the parties by pseudonyms. See Tex. Fam. Code Ann. § 109.002(d). 2 The trial court filed findings of fact and conclusions of law, and no party challenges any of those findings on appeal. Our recitation of the facts relevant to this appeal is drawn from the trial court’s findings. See Raman Chandler Props., L.C. v. Caldwell’s Creek Homeowners Ass’n, 178 S.W.3d 384, 390 (Tex. App.—Fort Worth 2005, pet. denied) (“Unchallenged findings of fact are binding unless the contrary is established as a matter of law or there is no evidence to support the findings.”).

2 September or October 2009. Kelly and Ivan engaged in sexual relations on a regular

basis during the period of time when Justin was conceived.

During that same time period, Kelly was also having sexual relations with Peter,

and Kelly’s extramarital affair continued for approximately four years. While she was

pregnant with Justin, Kelly told Peter that he was Justin’s biological father and

continued to tell Peter that fact after Justin’s birth.

When Kelly told Ivan that she was pregnant with Justin, Ivan believed he was

Justin’s biological father and continued to believe he was Justin’s biological father

through at least the first four years of Justin’s life. Justin knows only Ivan as his

father, and Ivan has a close and loving parent–child relationship with Justin.

In January 2011, Peter obtained a DNA test confirming that he is Justin’s

biological father. Peter, however, never filed an acknowledgment of paternity. Peter

did not commence this suit to establish the paternity of Justin until June 4, 2015.

II. STATUTORY SCHEME

A “parent–child relationship” in Texas means the legal relationship between a

child and the child’s parent as provided under chapter 160 of the family code. See

Tex. Fam. Code Ann. § 101.025. Once established, this legal relationship confers

numerous rights and duties upon a child’s parents. See id. § 151.001. For example, a

child’s parent has the right to have physical possession of the child, to direct the

child’s moral and religious training, to make decisions concerning the child’s

education, and to designate the residence of the child. Id. § 151.001(a)(1), (10). A 3 parent also has the right to represent the child in a legal action and to make other

decisions of substantial significance concerning the child. Id. § 151.001(a)(7). A

child’s parent has the right to inherit from and through the child and generally has the

right to the services and earnings of the child. Id. § 151.001(a)(5), (9). The list goes

on. See id. § 151.001.

The duties of a parent are similarly vast. A child’s parent has the duty of care,

control, protection, and reasonable discipline of the child. Id. § 151.001(a)(2). A

parent has the duty to support the child, a duty that includes providing the child with

clothing, food, shelter, medical and dental care, and an education. Id. § 151.001(a)(3).

A parent also generally has the duty to manage the estate of the child. Id.

§ 151.001(a)(4). And there are more. See id. § 151.001.

The parent–child relationship includes the mother–child relationship and the

father–child relationship. See id. §§ 101.024(a), .025, 160.102(11), .201. Peter desires

to establish the latter between himself and Justin, thereby placing in Peter all the rights

and duties of a parent as described above. A father–child relationship can be

established between a man and a child in the following ways:

(1) an unrebutted presumption of the man’s paternity of the child under Section 160.204;

(2) an effective acknowledgment of paternity by the man under Subchapter D,[] unless the acknowledgment has been rescinded or successfully challenged;

(3) an adjudication of the man’s paternity;

4 (4) the adoption of the child by the man; or

(5) the man’s consenting to assisted reproduction by his wife under Subchapter H,[] which resulted in the birth of the child.

Id. § 160.201(b). The first and third means are in play here. Under the first means, a

father–child relationship between a man and a child can be established by

presumption under several circumstances, including if the man was married to the

child’s mother when the child was born. Id. § 160.204(a)(1). That is what happened

here: Ivan was married to Kelly when she gave birth to Justin. Thus, the law

presumes that Ivan is Justin’s father. See id.

But Peter alleges that he, not Ivan, is Justin’s biological father. Nevertheless,

section 160.204—the statute prescribing the circumstances under which a man is

presumed to be a child’s father—does not presume a man to be a child’s father merely

because the man is the child’s biological father.3 See id. § 160.204. And if a

presumption arises that a man is a child’s father under section 160.204, that

presumption is a particularly strong one, even if it so happens that the man is not the

child’s biological father. The presumption can be rebutted in only two circumstances:

(1) when there is a formal adjudication of parentage in a proceeding brought for that

purpose or (2) when the presumed father files a valid denial of paternity in

conjunction with another person’s filing of a valid acknowledgement of paternity. Id.

3 Of course, it will often be the case that a man who is presumptively a child’s father under section 160.204 will also be the child’s biological father, but as this case demonstrates, that is not always so.

5 § 160.204(b); In re S.C.L., 175 S.W.3d 555, 559 (Tex. App.—Dallas 2005, no pet.). So

long as the presumption stays unrebutted, the law deems the presumed father to be

the child’s father. Tex. Fam. Code Ann. §§ 160.102(13), .201(b)(1); S.C.L.,

175 S.W.3d at 557.

With Ivan as Justin’s presumed father, then, Peter does not have an existing

father–child relationship with Justin under Texas law. See Tex. Fam. Code Ann.

§ 160.201. Instead, based on Peter’s allegation that he is Justin’s biological father,

Peter is an alleged father. See id. § 101.0015 (defining “alleged father” to mean “a man

who alleges himself to be, or is alleged to be, the genetic father or a possible genetic

father of a child, but whose paternity has not been determined”). So Peter filed this

suit to adjudicate parentage in order to rebut Ivan’s presumed-father status and to

establish a father–child relationship with Justin. See id. § 160.602(a)(3).

If a child does not have a presumed, acknowledged, or adjudicated father, a

person with standing to bring a suit to adjudicate the parentage of the child may file

that suit at any time. See id. §§ 160.602, .606. But that is not so if the child has a

presumed father, as Justin does here. Section 160.607 applies to that situation, and it

provides as follows:

(a) Except as otherwise provided by Subsection (b), a proceeding brought by a presumed father, the mother, or another individual to adjudicate the parentage of a child having a presumed father shall be commenced not later than the fourth anniversary of the date of the birth of the child.

6 (b) A proceeding seeking to adjudicate the parentage of a child having a presumed father may be maintained at any time if the court determines that:

(1) the presumed father and the mother of the child did not live together or engage in sexual intercourse with each other during the probable time of conception; or

(2) the presumed father was precluded from commencing a proceeding to adjudicate the parentage of the child before the expiration of the time prescribed by Subsection (a) because of the mistaken belief that he was the child’s biological father based on misrepresentations that led him to that conclusion.

Id. § 160.607; see S.C.L., 175 S.W.3d at 557.

Thus, with two exceptions (which do not apply here), if a child has a presumed

father, a proceeding to adjudicate the child’s parentage must be brought no later than

the child’s fourth birthday.4

III. TRIAL COURT PROCEEDINGS

From the time they filed their initial pleadings in this case, Kelly and Ivan

asserted that Peter’s suit was barred by section 160.607’s four-year statute of

limitations. And for the first two years that this case was pending before the trial

court, Peter asserted only one basis for avoiding section 160.607’s applicability: he

claimed that Kelly and Ivan should be barred from asserting section 160.607’s time

limitation based on the doctrine of equitable estoppel. Peter did not raise a challenge

4 There is also a four-year limitations period in cases when a child has an acknowledged or adjudicated father. In those cases, a person generally may not initiate an adjudication suit more than four years after the effective date of the acknowledgement or adjudication. See Tex. Fam. Code Ann. § 160.609.

7 to section 160.607’s constitutionality until he filed his second amended petition to

adjudicate parentage on June 5, 2017, two years after he initiated this suit and only

two weeks before the scheduled bench trial.5 In his live pleading, Peter asserted that

section 160.607 is unconstitutional under the Fourteenth Amendment’s Equal

Protection and Due Process Clauses as well as under Texas constitution article I,

section 19’s due-course-of-law guarantee.6

But Peter did not present the trial court with any arguments related to the

constitutional challenges he raised in his live pleading until his closing argument at

trial. Even then, Peter’s constitutional argument was meager. The record shows that

Peter’s primary focus during trial remained his contention that section 160.607 was

inapplicable based on equitable estoppel, and that basis for avoiding section 160.607

dominated his closing argument. His entire argument related to section 160.607’s

constitutionality was the following:

In fact, the Supreme Court of the United States has recently ruled that a court may not treat a married parent differently than a single parent, and because of the minor exceptions in the statute at bar here, it does just that. So we’re asking the Court to find on its face that it’s unconstitutional and inapplicable . . . .

5 The parties agreed to a reset of the trial, and Peter amended his pleadings twice more, leaving his fourth amended petition to adjudicate parentage as his live pleading. 6 With respect to his due-course-of-law challenge, other than quoting article I, section 19, Peter pleaded only that “[u]nder this provision, Petitioner seeks to obtain a judicial determination entitling him to both the rights and obligations of a ‘parent.’”

8 The trial court took the case under advisement and on October 9, 2017, sent a letter

informing the parties that it had determined section 160.607 was constitutional.

On December 18, 2017, before the trial court signed a final order, Peter filed a

motion asking it to reconsider its determination that section 160.607 was

constitutional. In that motion, Peter, relying on cases from the United States

Supreme Court, argued that the trial court had to subject section 160.607 to strict

scrutiny because it infringed upon a fundamental right and created a suspect

classification.7 And he argued that section 160.607 was unconstitutional because it

could not survive such scrutiny.

The trial court held a hearing on Peter’s motion. Echoing the arguments in his

motion, Peter maintained that section 160.607 was unconstitutional because it

infringed on “a biological parent’s rights to their own child,” which the “Supreme

Court ha[d] held [to be] a fundamental constitutional right.” He also argued that

7 While Peter did cite to four Texas cases, he did so to support his contention that section 160.607 infringed on a fundamental right. And none of the four Texas cases he cited involved constitutional challenges to a statute, whether under the federal or state constitutions. See generally Holick v. Smith, 685 S.W.2d 18, 21 (Tex. 1985) (holding evidence legally insufficient to support trial court’s order terminating mother’s parental rights under termination statute); In re G.M., 596 S.W.2d 846, 847 (Tex. 1980) (holding that parental terminations must be based on clear and convincing evidence); Wiley v. Spratlan, 543 S.W.2d 349, 352 (Tex. 1976) (holding evidence legally insufficient to support trial court’s order terminating mother’s parental rights under termination statute); Gunn v. Cavanaugh, 391 S.W.2d 723, 724, 726–27 (Tex. 1965) (holding that father—whose parental rights were terminated despite the fact he was never served—had a remedy, but the remedy was by bill of review rather than by writ of error).

9 section 160.607 created a suspect class because it differentiated between “a married

man and an unmarried man.” He elaborated, stating that under the family code, “[a]

biological parent can file a paternity suit at any point that they determine that they

may be the father of the child, except if [the] mother was married at the time the child

was born,” and thus, section 160.607 results in treating two classes of people

differently.

Peter further argued that because section 160.607 infringed on a fundamental

right and created a suspect class, the trial court had to apply strict scrutiny and that

“statutes that are subject to strict scrutiny are almost always struck down as

unconstitutional.” Peter asserted that there was “no important governmental interest”

in denying his ability to establish parentage more than four years after Justin’s birth.

Peter asked the trial court to “review the cited Supreme Court cases that [he had]

previously provided, and to apply the strict scrutiny application and find that the

statute that barred [him] from bringing this suit more than four years after the birth of

the child is unconstitutional.”

Following the hearing on Peter’s motion to reconsider, the trial court denied

the motion and signed an order denying his petition to adjudicate parentage. Upon

Peter’s request, the trial court filed findings of fact and conclusions of law. The trial

court made two conclusions of law that are relevant here. First, the trial court

concluded that Peter had failed to file his suit to adjudicate parentage within the

10 limitations period provided in section 160.607. And second, it concluded that section

160.607 is constitutional.

IV. DISCUSSION

In his sole issue, Peter challenges the trial court’s conclusion that section

160.607 is constitutional, arguing that it violates both the state and federal

constitutions. But the arguments in his brief supporting that assertion are difficult to

discern. Peter makes references in his brief to the due-course-of-law guarantee in

article I, section 19 of the Texas constitution. See Tex. Const. art. I, § 19. He also

references the Fourteenth Amendment’s Equal Protection Clause. See U.S. Const.

amend. XIV, § 1. Peter additionally makes a passing reference to “his constitutional

right to . . . equal protection” guaranteed in the Texas constitution.8

A. STANDARD OF REVIEW

The trial court’s determination that section 160.607 is constitutional is a legal

conclusion that we review de novo. See Lund v. Giauque, 416 S.W.3d 122, 126 (Tex.

8 Peter appears to argue that section 160.607 violates his constitutional right to equal protection “as guaranteed in Texas [c]onstitution, article I, section 19.” While the Texas constitution has an equal-protection provision that is similar to the Equal Protection Clause in the federal Constitution’s Fourteenth Amendment, that provision does not appear in article I, section 19 but is instead found in article I, section 3. Compare Tex. Const. art. I, § 3, with Tex. Const. art. I, § 19. See generally Gatesco Q.M. Ltd. v. City of Houston, 503 S.W.3d 607, 621 (Tex. App.—Houston [14th Dist.] 2016, no pet.) (“The legal standard for the equal-protection analysis under article I, section 3 of the Texas [c]onstitution is the same as the legal standard for the analysis under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.”). Peter did not cite to article I, section 3 in his brief.

11 App.—Fort Worth 2013, no pet.). We begin with a strong presumption that section

160.607 is constitutional. See Tex. Gov’t Code Ann. § 311.021(1); Whitworth v. Bynum,

699 S.W.2d 194, 196–97 (Tex. 1985); Sanders v. Palunsky, 36 S.W.3d 222, 224 (Tex.

App.—Houston [14th Dist.] 2001, no pet.). And as the party making a constitutional

challenge, Peter has the burden to establish section 160.607’s unconstitutionality. See

Lund, 416 S.W.3d at 126–27.

B. PETER DID NOT PRESERVE HIS CONSTITUTIONAL COMPLAINTS BASED ON THE TEXAS CONSTITUTION

To preserve a complaint for appellate review, a party must present to the trial

court a timely request, objection, or motion that states the specific grounds for the

desired ruling, if not apparent from the request’s, objection’s, or motion’s context. See

Tex. R. App. P. 33.1(a)(1)(A). If a party fails to do this, error is not preserved. Bushell

v. Dean, 803 S.W.2d 711, 712 (Tex. 1991) (op. on reh’g). Additionally, the complaint a

party raises on appeal must match the complaint the party presented to the trial court.

See Banda v. Garcia, 955 S.W.2d 270, 272 (Tex. 1997). These error-preservation rules

apply to constitutional challenges. See Dreyer v. Greene, 871 S.W.2d 697, 698 (Tex.

1993) (“As a rule, a claim, including a constitutional claim, must have been asserted in

the trial court in order to be raised on appeal.”); Miles v. Jerry Kidd Oil Co., 363 S.W.3d

823, 828–29 (Tex. App.—Tyler 2012, no pet.). As outlined above, Peter included in

his live pleading a conclusory allegation that section 160.607 violates the due-course-

of-law guaranteed under article I, section 19 of the Texas constitution, but he never

12 presented the trial court with any specific arguments related to that contention. And

he neither pleaded nor argued that section 160.607 violates the Texas constitution’s

equal-protection guarantee. Thus, Peter failed to preserve his complaints based on

the Texas constitution’s due-course-of-law and equal-protection guarantees. See Miles,

363 S.W.3d at 828–29 (holding that appellant failed to preserve equal-protection and

due-course-of-law complaints based on the Texas constitution because he did not

raise them in the trial court).

C. PETER’S EQUAL-PROTECTION CHALLENGE TO SECTION 160.607 FAILS

In his brief, as he did in the trial court, Peter contends that section 160.607

violates the Equal Protection Clause because it is required to, but cannot, survive

strict-scrutiny review. He argues that strict scrutiny is the appropriate standard

because section 160.607 infringes on a fundamental right and creates a suspect

classification. Peter did not argue in the trial court, and does not argue on appeal, that

section 160.607 violates the Equal Protection Clause under a constitutional standard

that is more deferential than strict scrutiny, such as rational basis.

1. Applicable Law

The Equal Protection Clause is “essentially a direction that all persons similarly

situated should be treated alike.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432,

439 (1985). This clause “does not require that all persons be dealt with identically, but

it does require that a distinction made have some relevance to the purpose for which

the classification is made.” Baxstrom v. Herold, 383 U.S. 107, 111 (1966). When 13 analyzing a claim that a statute violates the Equal Protection Clause, the level of

scrutiny we apply depends upon the nature of the rights affected. Mauldin v. Tex. State

Bd. of Plumbing Exam’rs, 94 S.W.3d 867, 871 (Tex. App.—Austin 2002, no pet.). If the

statute implicates a fundamental right or a suspect class, then we apply strict scrutiny,

under which the statute will be upheld only if it is narrowly tailored to further a

compelling government interest.9 Mauldin, 94 S.W.3d at 871, 873; see City of Cleburne,

473 U.S. at 440; Wood v. Collier, 836 F.3d 534, 538–39 (5th Cir. 2016). Otherwise, we

apply rational basis, under which the challenged statute will be upheld if it rationally

furthers a legitimate government interest. Mauldin, 94 S.W.3d at 871; see City of

Cleburne, 473 U.S. at 440; Wood, 836 F.3d at 539.

2. Fundamental Right

We consider first Peter’s contention that strict scrutiny applies here because

section 160.607 infringes upon a fundamental right.

In the context of analyzing whether a statute burdens a fundamental right

under the Equal Protection Clause, fundamental rights are those that are, “objectively,

deeply rooted in this Nation’s history and tradition” and “implicit in the concept of

ordered liberty, such that neither liberty nor justice would exist if they were

9 Strict scrutiny is a demanding standard. Mance v. Sessions, 896 F.3d 699, 705 (5th Cir. 2018). The Supreme Court of the United States has stated that although strict scrutiny does not always result in a statute being struck down such that the standard is “strict in theory, but fatal in fact,” see Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 237 (1995), nevertheless, it is rare that a statute will survive strict scrutiny, see Burson v. Freeman, 504 U.S. 191, 211 (1992).

14 sacrificed.” Washington v. Glucksberg, 521 U.S. 702, 720–21 (1997) (citations and

internal quotation marks omitted).10 Analyzing whether an asserted right is

fundamental first requires a careful description of the asserted right. Morrissey,

871 F.3d at 1269; see Glucksberg, 521 U.S. at 721; Schlittler v. State, 488 S.W.3d 306, 313–

14 (Tex. Crim. App. 2016).

We note that the fundamental right Peter claims section 160.607 infringes is far

from carefully articulated. Peter appears to contend that because he is Justin’s

biological father, he has a fundamental right to establish a parent–child relationship

with Justin even though Justin has a presumed father, and Peter claims section

160.607 denies him that right because it bars him from seeking to establish that

relationship. But it is imprecise to say that section 160.607 bars Peter from seeking to

establish a parent–child relationship with Justin because that provision does no such

thing. To the contrary, even though Justin has a presumed father, TUPA as a whole

provides, and the provisions of section 160.607 presuppose, that Peter has standing as

10 Although Glucksberg involved whether an asserted right was “fundamental” under the Fourteenth Amendment’s Due Process Clause rather than its Equal Protection Clause, the test for determing whether an asserted right is a fundamental right that triggers strict scrutiny is the same under both of those Clauses. See Scally v. Tex. State Bd. of Med. Exam’rs, 351 S.W.3d 434, 448 n.18 (Tex. App.—Austin 2011, pet. denied) (citing Glucksberg test as the test for determining whether an asserted right was a fundamental right for purposes of analyzing the appellant’s challenge under the Equal Protection Clause); see also Morrissey v. United States, 871 F.3d 1260, 1269 & n.7 (11th Cir. 2017) (looking to cases that analyzed whether asserted rights were fundamental under the Due Process Clause in order to determine whether appellant’s asserted right was fundamental under the Equal Protection Clause).

15 Justin’s alleged father to bring a suit to adjudicate parentage. See Tex. Fam. Code

Ann. § 160.602(a)(3) (generally conferring standing to file a proceeding to adjudicate

parentage on “a man whose paternity of the child is to be adjudicated”), § .607(a)

(providing that even when a child has a presumed father, a person with standing may

bring an adjudication suit, so long as he does so by the child’s fourth birthday); see also

In re Sullivan, 157 S.W.3d 911, 919 (Tex. App.—Houston [14th Dist.] 2005, orig.

proceeding) (noting that at a minimum, section 160.602(a)(3) confers standing on an

alleged father to prosecute an adjudication suit).

What section 160.607 actually bars Peter from doing is initiating an

adjudication suit to establish a parent–child relationship with Justin after his fourth

birthday because Justin has a presumed father. See Tex. Fam. Code Ann. § 160.607(a).

Thus, a careful description of the right Peter argues is fundamental is the right of an

alleged father to commence a paternity suit for the purpose of establishing a parent–

child relationship with a child who has a presumed father after the child’s fourth

birthday. Having carefully described the asserted fundamental right, we must consider

whether it is, “objectively, deeply rooted in this Nation’s history and tradition” and

“implicit in the concept of ordered liberty, such that neither liberty nor justice would

exist if [it] were sacrificed.” Glucksberg, 521 U.S. at 720–21; see Morrissey, 871 F.3d at

1269. We conclude the answer is no.

We find the United States Supreme Court’s decision in Michael H. v. Gerald D.

instructive to the historical inquiry here. See 491 U.S. 110 (1989). There, as here, the 16 husband’s wife engaged in an adulterous affair that resulted in a child’s being

conceived. See id. at 113–14. But the husband and wife remained married, and the

child who was conceived during the wife’s affair was subsequently born during the

marriage. See id. As a result, state law presumed the husband to be the child’s father.

See id. at 117–18. The child’s biological father eventually filed a lawsuit seeking to

rebut that presumption and to establish paternity. See id. at 114. But under state law,

the biological father had no standing to bring such a suit, only the husband or wife

did. See id. at 115, 117–18. So the biological father lost on summary judgment, and

his case found its way to the United States Supreme Court, which addressed the

biological father’s contention that the statutory scheme prohibiting him from

rebutting the presumption that the husband was the child’s father and from

establishing his own paternity deprived him of substantive due-process rights under

the Fourteenth Amendment. See id. at 115–16.

After conducting a historical inquiry, a plurality of the Court concluded that

our society did not have a traditional practice either of conferring standing to a

biological father to assert paternity to a child born during the mother’s marriage to

another man or of according the biological father substantive parental rights in that

circumstance. See id. at 124–27 (explaining that nothing in the older sources or older

cases specifically addressed “the power of the natural father to assert parental rights

over a child born into a woman’s existing marriage with another man” and that

nothing in the caselaw showed that the states “in fact award[ed] substantive parental 17 rights to the natural father of a child conceived within, and born into, an extant

marital union that wishe[d] to embrace the child”). The plurality thus concluded that

the state statutory scheme that prohibited the biological father from establishing

paternity did not infringe upon any fundamental right protected by the Fourteenth

Amendment. Id. at 127. In the plurality’s view, it was “a question of legislative policy

and not constitutional law whether [the state would] allow the presumed parenthood

of a couple desiring to retain a child conceived within and born into their marriage to

be rebutted.” Id. at 129–30.

The facts of this case are strikingly similar to those present in Michael H.,

though the statutory scheme that Peter challenges in this case does differ from that at

issue in Michael H. In Michael H., the challenged statutory scheme completely barred

the biological father from challenging the paternity of a child born into a woman’s

existing marriage and thus denied him any ability to establish parental rights. See id. at

115, 117–18. But the statutory scheme that Peter challenges in this case is much more

favorable to him than the one at issue in Michael H. was to the biological father there.

As noted above, TUPA affords a person in Peter’s shoes the ability to bring a suit to

adjudicate parentage so long as he initiates that proceeding by the child’s fourth

birthday. If, as the plurality concluded in Michael H. under facts similar to those here,

a statutory scheme that barred the biological father from bringing a suit to adjudicate

parentage at any time did not infringe on his fundamental rights under the Fourteenth

Amendment, we cannot see how a statutory scheme that allows the biological father 18 to file such a suit by the child’s fourth birthday would. Cf. S.C.L., 175 S.W.3d at 558

(holding that section 160.607’s four-year period of limitations to commence

adjudication suit did not violate biological father’s due-process rights under the

Fourteenth Amendment). Accordingly, we hold that Peter has not established that

the Fourteenth Amendment affords him a fundamental right to commence a suit to

adjudicate parentage after Justin’s fourth birthday.

Having concluded that Peter failed to show that section 160.607 burdens a

fundamental right, we now consider whether it implicates a suspect class. See Mauldin,

94 S.W.3d at 871, 873; see also City of Cleburne, 473 U.S. at 440; Wood, 836 F.3d at 539.

3. Suspect Class

While it is clear that Peter means to argue that section 160.607 burdens a

suspect class, it is not at all clear what he believes that suspect class to be. He broadly

asserts that “laws that treat people differently cannot stand without meeting the

heightened scrutiny standard.” But that is not so. A statute is subjected to strict

scrutiny under the Equal Protection Clause only if it implicates a fundamental right or

a suspect class. Mauldin, 94 S.W.3d at 871, 873; see City of Cleburne, 473 U.S. at 440;

Wood, 836 F.3d at 539. A suspect class is one that has been “saddled with such

disabilities, or subjected to such a history of purposeful unequal treatment, or

relegated to such a position of political powerlessness as to command extraordinary

protection from the majoritarian political process.” Mass. Bd. of Ret. v. Murgia,

427 U.S. 307, 313 (1976) (quoting San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 19 28 (1973)); accord In re H.Y., 512 S.W.3d 467, 475–76 (Tex. App.—Houston [1st Dist.]

2016, pet denied). Examples of suspect classes are those based upon gender, race,

alienage, and national origin. See Sonnier v. Quarterman, 476 F.3d 349, 368 n.17 (5th Cir.

2007); Mauldin, 94 S.W.3d at 871 (citing Frontiero v. Richardson, 411 U.S. 677, 688

(1973)).

Peter does not assert that section 160.607 creates a class based on any of the

characteristics that courts have historically held to be suspect. Instead, Peter appears

to contend that section 160.607 creates a suspect class merely because it treats an

alleged father differently from a presumed father. But assuming that section 160.607

draws such a distinction, Peter offers neither authority nor explanation as to how that

distinction creates a suspect class that triggers strict scrutiny. Because strict scrutiny

“requires an exacting investigation of legislative choices, the Supreme Court has made

clear that ‘respect for the separation of powers’ should make courts reluctant to

establish new suspect classes.” Thomasson v. Perry, 80 F.3d 915, 928 (4th Cir. 1996)

(quoting City of Cleburne, 473 U.S. at 441). We cannot conclude that section 160.607

burdens a suspect class based on nothing more than Peter’s broad and bare assertions

that section 160.607 treats him differently than it does a presumed father.

Accordingly, we hold that Peter has failed to show that section 160.607 burdens a

suspect class.

20 4. Strict Scrutiny Does Not Apply

We have concluded that section 160.607 does not implicate a fundamental right

or a suspect class. Accordingly, strict scrutiny does not apply. See Mauldin, 94 S.W.3d

at 871; see also City of Cleburne, 473 U.S. at 440; Wood, 836 F.3d at 539. Both in this

court and in the trial court, the only basis Peter presented for holding section 160.607

unconstitutional was that it had to, but could not, withstand strict-scrutiny review.

Peter has not asserted that section 160.607 is unconstitutional even under a less

rigorous standard, such as rational basis. Thus, our conclusion that strict scrutiny is

not the applicable standard to apply in reviewing section 160.607’s constitutionality is

dispositive of Peter’s sole issue. See Tex. R. App. P. 47.1; Ramirez v. State, 557 S.W.3d

717, 721–22 (Tex. App.—Corpus Christi–Edinburg 2018, pet. ref’d) (concluding that

court’s holding that challenged statute was not subject to strict-scrutiny review was

dispositive of the appellant’s constitutional challenge when the appellant’s only

argument for striking down the statute was that the statute could not withstand strict-

scrutiny review). Accordingly, we overrule Peter’s sole issue.

V. CONCLUSION

Having overruled Peter’s sole issue, we affirm the trial court’s judgment. See

Tex. R. App. P. 43.2(a).

/s/ Lee Gabriel Lee Gabriel Justice

Delivered: August 27, 2019 21