By: Dutton (Senate Sponsor - Harris) H.B. No. 782
         (In the Senate - Received from the House April 27, 2007;
  May 1, 2007, read first time and referred to Committee on
  Jurisprudence; May 18, 2007, reported adversely, with favorable
  Committee Substitute by the following vote:  Yeas 4, Nays 0;
  May 18, 2007, sent to printer.)
 
  COMMITTEE SUBSTITUTE FOR H.B. No. 782 By:  Harris
 
 
A BILL TO BE ENTITLED
 
AN ACT
 
  relating to genetic testing in the determination of parentage and
  to a proceeding to vacate an order of paternity or child support.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
               SECTION 1.  Section 102.008, Family Code, is amended by
  amending Subsection (b) and adding Subsection (c) to read as
  follows:
         (b)  The petition must include:
               (1)  a statement that the court in which the petition is
  filed has continuing, exclusive jurisdiction or that no court has
  continuing jurisdiction of the suit;
               (2)  the name and date of birth of the child, except
  that if adoption of a child is requested, the name of the child may
  be omitted;
               (3)  the full name of the petitioner and the
  petitioner's relationship to the child or the fact that no
  relationship exists;
               (4)  the names of the parents, except in a suit in which
  adoption is requested;
               (5)  the name of the managing conservator, if any, or
  the child's custodian, if any, appointed by order of a court of
  another state or country;
               (6)  the names of the guardians of the person and estate
  of the child, if any;
               (7)  the names of possessory conservators or other
  persons, if any, having possession of or access to the child under
  an order of the court;
               (8)  the name of an alleged father of the child or a
  statement that the identity of the father of the child is unknown;
               (9)  a full description and statement of value of all
  property owned or possessed by the child;
               (10)  a statement describing what action the court is
  requested to take concerning the child and the statutory grounds on
  which the request is made; [and]
               (11)  notice to an alleged or presumed father of the
  child, if any, of the right to request paternity testing; and
               (12)  any other information required by this title.
         (c)  The notice described by Subsection (b)(11) must include
  the following statement printed in boldfaced type, in capital
  letters, or underlined:
         "YOU HAVE THE RIGHT TO REQUEST GENETIC TESTING TO DETERMINE
  THE PARENTAGE OF THE CHILD NAMED IN THIS SUIT. YOUR REQUEST FOR
  GENETIC TESTING MUST BE IN WRITING AND FILED WITH THE CLERK OF THE
  COURT IN WHICH THIS SUIT IS FILED. ANY ALLEGED OR PRESUMED FATHER
  WHO DOES NOT REQUEST GENETIC TESTING SHALL BE BARRED FROM BRINGING
  AN ACTION TO VACATE A CHILD SUPPORT ORDER OR A PARENTAGE ORDER."
         SECTION 2.  Chapter 105, Family Code, is amended by adding a
  new Section 105.0035 to read as follows:
         Sec. 105.0035.  PATERNITY TESTING.  (a)  Except as provided
  in this section, a court may not render an order in a suit unless the
  court finds that:
               (1)  based on court-ordered genetic testing which
  complies with Section 160.503, the man alleged to be the father of
  the child made the subject of the suit is rebuttably identified as
  the father of the child in accordance with Section 160.505(a);
               (2)the party ordered to pay child support is an
  adoptive parent of the child;
               (3)  if the man is married to the mother of the child,
  the man:
               (A)  filed an affidavit acknowledging that he has
  received the notice required by Section 102.008 (b) (11) and does
  not dispute the presumption provided by Section 160.204;
               (B)  is duly served with notice of the suit, including
  the notice required by Section 102.008 (b) (11), and fails to answer
  and wholly makes default; or
               (C) is ordered by the court to submit to genetic testing
  under Chapter 160 and fails to comply with the court's order; or
               (4)  if the man is not married to the mother of the
  child, the man:
               (A)  filed an affidavit acknowledging that he has
  received the notice required by Section 102.008(b)(11) and
  acknowledges that he is the biological father of the child as
  required by Section 160.302;
               (B)  is duly served with notice of the suit, including
  the notice required by 102.008(b)(11), and fails to answer and
  wholly makes default; or
               (C)  is ordered by the court to submit to genetic
  testing under Chapter 160 and fails to comply with the court's
  order.
         (b)  If a man fails to file an affidavit required by
  Subsection (a)(3)(A) or (a)(4)(A), or fails to submit to genetic
  testing ordered by the court, the court may render an order
  declaring the man to be the biological father of the child.
         (c)  A man who files an affidavit pursuant to Subsection
  (a)(3)(A) or (a)(4)(A), or fails to submit to genetic testing
  ordered by the court, may not challenge the adjudication of
  paternity in any subsequent proceeding under Subchapter J, Chapter
  160.
         (d)  Payment of the cost of genetic testing under this
  section shall be governed by Chapter 160.
         (e)  Nothing in this section affects the power of a court to
  order temporary child support to be paid by a presumed father
  pending the outcome of a determination of whether the presumed
  father is the parent of the child.
         SECTION 3.  Chapter 160, Family Code, is amended by adding
  Subchapter J to read as follows:
  SUBCHAPTER J.  PROCEEDINGS TO VACATE COURT ORDER
         Sec. 160.801.  SUIT TO VACATE COURT ORDER. (a) A person
  identified in a court order as the father of a child may file a
  petition not later than the child's 18th birthday requesting the
  court to vacate a court order that:
               (1)  states that the person identified in the order as
  the father of the child is the father of the child identified in the
  motion; or
               (2)  requires the person identified in the order as the
  father of the child to pay child support for the child.
         (b)  The petition to vacate a court order must be accompanied
  by:
               (1)  an affidavit stating:
                     (A)  facts that show the court order was obtained
  by fraud or material mistake of fact; or
                     (B)  that the man was duly served with notice of
  the suit and failed to answer but did not receive the notice
  required by Section 102.008(b)(11); and
               (2)  a certified copy of the court order to be vacated.
         (c)  The court may not grant a petition to vacate a court
  order under this section if the person identified in the court order
  as the father of the child:
               (1)  is the child's adoptive father;
               (2)  consented to assisted reproduction by his wife
  under Subchapter H;
               (3)  was an intended father under a gestational
  agreement confirmed by a court under Subchapter I; or
               (4)  filed the petition under this section after the
  180th day after the date the person received the results of a
  genetic test described by Section 160.802(b)(3).
         Sec. 160.802.  GENETIC TESTING.  (a) In a proceeding under
  this subchapter, if the court finds that the affidavit filed with
  the petition under Section 160.801 establishes a prima facie case
  that the court order was obtained by fraud or material mistake of
  fact, the court shall order the child and the person identified in
  the court order as the father of the child to submit to genetic
  testing not later than the 30th day after the date the order
  requiring genetic testing is rendered.
         (b)  A person establishes a prima facie case that a court
  order was obtained by fraud or material mistake of fact if the
  person's affidavit states that the person:
               (1)  was the presumed father of the child or was induced
  by representations made by the child's mother to believe that the
  person was the child's father;
               (2)  at the time the court order was rendered, did not
  know that he was not the father of the child; and
               (3)  took a genetic test after the date the court order
  sought to be vacated was rendered that establishes that the person
  is not rebuttably identified as the father of the child in
  accordance with Section 160.505.
         (c)  Genetic testing under this section is governed by
  Subchapter F.
         (d)  If the affidavit filed with the petition does not
  establish a prima facie case, the court shall, on a motion by the
  respondent, dismiss the petition.
         Sec. 160.803.  FAILURE TO SUBMIT TO GENETIC TEST. (a) If
  the person who has been awarded the exclusive right to designate the
  child's primary residence fails to allow the child to be
  genetically tested under Section 160.802, the court may suspend the
  legal obligation of the person identified in the court order as the
  father of the child to pay child support until the child is
  genetically tested.
         (b)  If the person identified in the court order as the
  father of the child fails to submit to a genetic test ordered under
  Section 160.802, the court shall dismiss the person's petition to
  vacate with prejudice.
         Sec. 160.804.  GROUNDS FOR VACATING ORDER. (a)  Except as
  otherwise provided by this section, the court shall vacate an order
  described by Section 160.801(a) if the court finds:
         (1)(A) that the order was obtained by fraud or material
  mistake of fact; or,
                     (B)  if the man was duly served with notice of the
  suit and failed to answer, that the man did not receive the notice
  required by Section 102.008(b)(11); and
               (2)  that the person identified in the court order as
  the father of the child:
                     (A)  was the presumed father of the child or was
  induced by representations made by the child's mother to believe
  that the person was the child's father;
                     (B)  at the time the order was rendered, did not
  know that he was not the father of the child;
                     (C)  based on genetic testing, is not rebuttably
  identified as the father of the child in accordance with Section
  160.505;
                     (D)  is not the child's adoptive parent;
                     (E)  is not the intended father of the child under
  a gestational agreement confirmed by a court under Subchapter I;
  and
                     (F)  did not consent to assisted reproduction by
  his wife under Subchapter H.
         (b)  The court may not vacate an order under this section if
  the court finds that at any time the person identified in the court
  order as the father of the child knew that he was not the child's
  biological parent and:
               (1)  consented to his name being entered as the child's
  biological father on the child's birth certificate;
               (2)  was determined to be the child's father in a
  proceeding to determine parentage; or
               (3)  filed an acknowledgment of paternity with the
  bureau of vital statistics.
         Sec. 160.805.  POSSESSION ORDER; CHILD SUPPORT ARREARAGE.
  (a) If the court vacates a parentage or child support order in a
  proceeding under this subchapter and the person identified in the
  court order as the father of the child is also entitled under an
  order to the possession of or access to the child who is the subject
  of the vacated order, the court shall determine whether the
  possession order should be terminated, modified, or continued based
  on the best interest of the child.
         (b)  If the court modifies or continues the possession order
  under Subsection (a), the person identified in the court order as
  the father of the child shall have the rights and duties provided by
  Section 153.074 during the period he has possession of the child.
         (c)  If the court vacates a child support order under this
  subchapter and an arrearage exists under that child support order,
  the court may reduce the amount of the arrearage to zero. If the
  court eliminates an arrearage under this subsection, the court
  shall issue an order stating that the child support obligation,
  including any arrearage, is terminated.
         (d)  The elimination of an arrearage under a child support
  order that is vacated as provided by this subchapter is for purposes
  of correcting an act induced by fraud, duress, or material mistake
  of fact and is not a retroactive modification.
         (e)  If the court vacates a parentage order in a proceeding
  under this subchapter, the court may order:
               (1)  the child or any party to participate in
  counseling with a licensed mental health professional who:
                     (A)  has a background in family therapy; and
                     (B)  holds a professional license that requires
  the person to possess at least a master's degree; and
               (2)  any party to pay the cost of counseling.
         (f)  If a person possessing the qualifications of Subsection
  (e)(1) is not available in the county in which the court presides,
  the court may appoint a person the court believes is qualified to
  conduct the counseling under Subsection (e).
         Sec. 160.806.  ATTORNEY'S FEES AND COURT COSTS. If the court
  vacates a parentage order or a child support order in a proceeding
  under this subchapter, the court may award reasonable attorney's
  fees to the petitioner. If the court does not grant the petition to
  vacate a parentage order or a child support order under this
  subchapter, the court shall order the petitioner to pay the costs of
  the action and each opposing party's reasonable attorney's fees.
         SECTION 4.  Section 233.028, Family Code, is amended by
  adding Subsection (a-1) and amending Subsection (b) to read as
  follows:
         (a-1)  The notice described in Subsection (a) and sent to a
  man alleged to be the father of a child must include the following
  statement printed on the notice in boldfaced type, in capital
  letters, or underlined:
         "YOU HAVE THE RIGHT TO REQUEST GENETIC TESTING TO DETERMINE
  THE PARENTAGE OF A CHILD WHOSE PARENTAGE HAS NOT BEEN ESTABLISHED.
  THE TITLE IV-D AGENCY WILL PAY FOR THE COSTS OF THE GENETIC TESTING,
  BUT IF THE RESULTS OF THE TESTING IDENTIFY YOU AS THE BIOLOGICAL
  FATHER OF THE CHILD, YOU MAY BE REQUIRED TO REIMBURSE THE AGENCY FOR
  THOSE COSTS."
         (b)  If all parties agree to the child's parentage, the
  agency may file an agreed child support review order as provided by
  this chapter. The agreed order must include a statement signed by
  the parties entitled to genetic testing in the case that the parties
  have waived their rights to request genetic testing.
         SECTION 5.  (a)  Section 233.028, Family Code, as amended by
  this Act, applies only to an administrative proceeding under
  Chapter 233, Family Code, for the determination of parentage
  commenced on or after the effective date of this Act.
         (b)  If before implementing any provision of this Act the
  Title IV-D agency determines that a waiver or authorization from a
  federal agency is necessary for implementation of the change in law
  made by this Act, the agency shall request the waiver or
  authorization and may delay implementing that provision until the
  waiver or authorization is granted.
         (c)  Except as provided by Subsection (d) of this section,
  Section 105.0035, Family Code, as added by this Act, and the change
  in law made by this Act to Section 102.008, Family Code, apply only
  to a suit affecting the parent-child relationship filed on or after
  the effective date of this Act. A suit affecting the parent-child
  relationship filed before the effective date of this Act is
  governed by the law in effect on the date the suit was filed, and the
  former law is continued in effect for that purpose.
         (d)  In a proceeding under Subchapter J, Chapter 160, Family
  Code, as added by this Act, to vacate an order rendered in a suit
  affecting the parent-child relationship filed before the effective
  date of this Act, the court may not vacate the order on the ground
  that the alleged or presumed father did not receive the notice
  required by Section 102.008(b)(11), Family Code, as added by this
  Act.
         SECTION 6.  This Act takes effect September 1, 2007.
 
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