B.I.V

Per Curiam Dolores Valadez brought this suit against Raul Longoria to establish his paternity of her child, B.I.V. Longoria
moved for summary judgment on the ground that the child had a presumed father, thus barring a paternity action as a matter
of law. At the time Valadez brought her suit, Section 13.01(a) of the Family Code specifically limited the filing of a paternity
suit to those situations in which the child involved had no "presumed father." Section 12.01(a)(1) of the Family Code provided,
then as now, that a man married to the mother of a child at the time of the child's birth is presumed to be the father of
that child. Based on undisputed evidence that B.I.V. was born while Valadez was validly married to a man other than Longoria,
the trial court granted the summary judgment. Valadez appealed, arguing that the Legislature did not intend to require termination
of a presumed father's parental rights before a Chapter 13 suit could be filed against someone other than the presumed father.
The court of appeals, rejecting this argument, held as a matter of law that a paternity action could not be filed if the child
had a presumed father, and thus affirmed the trial court's decision to grant appellee's summary judgment. 843 S.W.2d at 64.
The court relied on the decision of the court of appeals in State v. Lavan, 802 S.W.2d 73, 74-77 (Tex. App. -- Austin 1990),
rev'd, 833 S.W.2d 952 (Tex. 1992). While the motion for rehearing was pending, this Court reversed the lower court's decision in Lavan. We held that proceedings
to disestablish paternity in one man and establish paternity in another may be brought in one action. Attorney General of
Texas v. Lavan, 833 S.W.2d 952 (Tex. 1992). On motion for rehearing, the court of appeals in this case concluded that Lavan
was distinguishable because there the State joined the presumed father and sought to disestablish his presumed paternity of
the child in one pleading, whereas here, Valadez had neither joined the presumed father nor challenged the presumption of
paternity under Chapter 12. Based on this distinction, the court of appeals denied appellant's motion for rehearing, notwithstanding
our writing in Lavan. 843 S.W.2d at 66-67.