In Re: Sharon Elizabeth Sullivan--Appeal from 247th District Court of Harris County

Petition for Writ of Mandamus Denied; Majority and Concurring Opinions of December 3, 2004 Withdrawn; and Substitute Majority and Concurring Opinions filed February 24, 2005

Petition for Writ of Mandamus Denied; Majority and Concurring Opinions of December 3, 2004 Withdrawn; and Substitute Majority and Concurring Opinions filed February 24, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-04-00514-CV

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IN RE SHARON ELIZABETH SULLIVAN, Relator

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ORIGINAL PROCEEDING

WRIT OF MANDAMUS

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S U B S T I T U T E C O N C U R R I N G O P I N I O N

While I join the majority=s holding and disposition, I respectfully disagree with its reasoning in reaching its conclusion. Today the majority concludes that the real party in interest, Brian Keith Russell, has standing under Chapter 160 of the Texas Family Code to establish his paternity of a child conceived through artificial insemination from the donation of his sperm to an unmarried woman, relator Sharon Elizabeth Sullivan. Because the plain and ordinary meaning of the relevant statutory provision in that chapter clearly confers standing upon a party such as Russell in the present case, I respectfully concur.

Standing Under Section 160.602

Standing to sue may be predicated upon either statutory or common-law authority. See Williams v. Lara, 52 S.W.3d 171, 178B79 (Tex. 2001). When standing is conferred by statute, the text of the operative provision and the case law interpreting it serve as the proper framework for the analysis. DaimlerChrysler Corp. v. Inman, 121 S.W.3d 862, 869 (Tex. App. Corpus Christi 2003, pet. filed). Sullivan claims that no provision within the Family Code confers standing upon Russell. I do not agree.

Section 160.602 provides: ASubject to Subchapter D [Texas Family Code ' 160.301B316] and Sections 160.607 and 160.609 and except as provided by Subsection (b), a proceeding to adjudicate parentage may be maintained by: . . . (3) a man whose paternity of the child is to be adjudicated . . . .@ Tex. Fam. Code Ann. '160.602(a)(3) (Vernon Supp. 2004B2005). Russell=s petition states as follows: AA purpose of this suit is to establish the parent-child relationship between BRIAN KEITH RUSSELL and the child, the subject of this suit.@ Therefore, Russell would clearly have standing under section 160.602 unless some other section of Chapter 160 states otherwise.[1]

Stautory Text of Section 160.702

Sullivan next claims that the plain language of section 160.702 negates any standing Russell may have been granted under section 160.602. Section 160.702 provides: AA donor is not a parent of a child conceived by means of assisted reproduction.@ Tex. Fam. Code Ann. ' 160.702 (Vernon 2002) (emphasis added).

The primary rule of statutory interpretation is to ascertain and give effect to the intent of the Texas Legislature. Phillips v. Beaber, 995 S.W.2d 655, 658 (Tex. 1999). If the statute is unambiguous, we are required to seek this intent in the plain and common meaning of its words and not elsewhere. See Moreno v. Sterling Drug, Inc., 787 S.W.2d 348, 352 (Tex. 1990).

The Aplain and common meaning@ of section 160.702 does not negate Russell=s standing under section 160.602. Rather, section 160.702 states only that one=s status as a mere donor does not establish in and of itself the existence of a parent-child relationship between the donor and the child resulting from assisted reproduction. It does not state that a donor can never be a parent under appropriate circumstances. Perhaps Sullivan=s construction of this provision would be accurate if the statute had provided, AA donor cannot be a parent of a child conceived by means of assisted reproduction.@ But that language does not appear in section 160.702, and Sullivan=s construction cannot be reached based on the plain and common meaning of the provision as enacted. In the present case, Russell does not claim that he is a father based solely on his status as a donor; rather, he alleges paternity of the child based on a Awritten co-parenting agreement.@[2] Therefore, Russell=s standing is not negated by section 160.702 because the language simply does not bear the meaning Sullivan ascribes to it.

Conclusion

Because section 160.602 of the Family Code broadly confers standing upon Brian Keith Russell in the present case and no other provision in Chapter 160 negates such standing, the trial court did not err in denying relator Sharon Elizabeth Sullivan=s plea to the jurisdiction. Accordingly, I concur in the majority=s denial of her petition for writ of mandamus.

/s/ Adele Hedges

Chief Justice

Petition for Writ of Mandamus Denied; Majority and Concurring Opinions of December 3, 2004 Withdrawn; and Substitute Majority and Concurring Opinions filed February 24, 2005.

Panel consists of Chief Justice Hedges and Justices Frost and Guzman. (Frost, J., majority.)

[1] In the event of any conflict between a Chapter 160 provision and another state statute or rule, the former prevails. Tex. Fam. Code Ann. ' 160.002 (Vernon 2002).

[2] The question of whether the Awritten co-parenting agreement@ suffices to confer the status of parenthood is not before us. I express no opinion on whether Russell will ultimately prevail in the trial court. I only recognize his standing to try.