Eric Carson Wynn v. Heather Johnson--Appeal from 307th District Court of Gregg County

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-06-00013-CV

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ERIC CARSON WYNN, Appellant

V.

HEATHER JOHNSON, Appellee

On Appeal from the 307th Judicial District Court

Gregg County, Texas

Trial Court No. 2003-834-DR

Before Morriss, C.J., Ross and Carter, JJ.

Opinion by Chief Justice Morriss

O P I N I O N

The parties agree that Eric Carson Wynn was finally convicted of sexually assaulting Heather Johnson, who, at about the time of the assault, conceived a child. After his conviction, Wynn initiated this separate proceeding under Chapter 160 of the Texas Family Code, the "Uniform Parentage Act," to establish the parent-child relationship with Johnson's child. In the same proceeding, however, Wynn alternatively sought DNA testing under Chapter 160 // to show that he was not the child's father, thereby, he argues, undermining the sexual assault conviction. From the trial court's dismissal of Wynn's action, // and with a limited record, Wynn appeals on the sole issue that the trial court's dismissal of the action denied Wynn the due process of law guaranteed by the United States Constitution. We affirm the trial court's dismissal because we hold that Wynn was not denied the due process of law.

Unlike parental rights termination proceedings, there is no statutory right to counsel under the genetic testing provisions of the Texas Family Code. Compare Tex. Code Crim. Proc. Ann. art. 64.01(c) (Vernon Supp. 2006) (post-conviction DNA testing; indigent's statutory right to appointment of counsel) with Tex. Fam. Code Ann. 160.601, 106.603 .606, 106.611, 106.621 .632, 106.634 .637 (Vernon 2002), 106.602, 160.607 .608, 160.612, 106.633 (Vernon Supp. 2006) (parentage proceedings; no statutory right to appointment of counsel).

Wynn cites Section 24.016 of the Texas Government Code as authority that he should have been appointed counsel. That section is not applicable, not mandating the appointment of counsel, but merely stating that a court "may appoint counsel" in an appropriate civil case. See Tex. Gov't Code Ann. 24.016 (Vernon 2004).

Wynn is partially correct in his next paragraph, namely his claim that Section 107.013 of the Texas Family Code requires appointment of counsel in parental rights termination cases. That section requires appointment of counsel for indigent parents against whom a government entity seeks termination of their parental rights. See Tex. Fam. Code Ann. 107.013(a) (Vernon Supp. 2006). This section is also inapplicable to Wynn's case, because no government entity sought termination of his parental rights.

Finally, without citing to the source of the quote, Wynn makes his sole constitutional argument: "When deprivation of parental [rights] status is at stake, counsel is part of the process that is due." After finding the source of Wynn's quote, we noticed an important omission from Wynn's version of the quote. The proper quote is, "When deprivation of parental status is at stake, however, counsel is sometimes part of the process that is due." M.L.B. v. S.L.J., 519 U.S. 102, 123 (1996) (emphasis added). The important point is that there is no blanket rule requiring appointment of counsel for indigent parents whose parental rights are being terminated. M.L.B. cites to Lassiter v. Dep't of Social Servs., 452 U.S. 18, 30 33 (1981), which calls for a case by case weighing of various factors to determine whether, before termination of parental rights can be ordered, counsel must be appointed for an indigent parent. // But we need not engage in that weighing process. Wynn has not been denied due process, because his parental rights, if any, have not been affected. That is because the entire action, including Johnson's counterclaim for termination of Wynn's parental rights, was dismissed, along with Wynn's suit to establish a parent-child relationship and, alternatively, for DNA testing.

There was no error in dismissing the case without appointing counsel to represent Wynn. We affirm the judgment.

Josh R. Morriss, III

Chief Justice

Date Submitted: August 14, 2006

Date Decided: August 24, 2006