Reversed and Remanded and Opinion filed December 6, 2012.

.

In The

Fourteenth Court of Appeals

NO. 14-11-00856-CV

SHARON ANN GRIBBLE, INDIVIDUALLY AND IN HER CAPACITY AS 

GUARDIAN OF THE PERSON AND ESTATE OF MICHAEL RAY GRIBBLE, 

Appellants,

V.

BRENT ALLEN LAYTON, Appellee.

On Appeal from the 306th District Court

Galveston County

Trial Court Cause No. 09FD0426

O P I N I O N

Appellant Sharon Ann Gribble, individually and in her capacity as guardian of the 

person and estate of Michael Ray Gribble, her disabled adult son, sued Michael’s alleged 

biological father, appellee Brent Allen Layton, for a determination of parentage and child 

support. Layton moved to dismiss the suit on statute-of-limitations grounds and, 

alternatively, on the grounds that Sharon lacked standing to pursue Michael’s claims on 
2

his behalf. The trial court granted Layton’s motion, concluding that the statutory 

limitations provision found in the 1983 version of former Family Code section 13.01 

barred the suit. We reverse and remand.

I

Michael Ray Gribble was born on December 10, 1972. Michael is mentally 

incompetent and also suffers from physical disabilities. Sharon filed this action in 

February 2009, when Michael was thirty-six years old. Sharon’s original petition in a suit 

affecting the parent-child relationship reflected that she brought the suit individually and 

as the court-appointed guardian of Michael’s person. In an amended petition, Sharon 

alleged that she brought the suit individually and in her capacity as the court-appointed

guardian of Michael’s person and estate.

1

In her pleadings, Sharon alleged that Michael requires substantial care and 

personal supervision because of a mental or physical disability and he is not capable of 

self-support. Sharon requested an order adjudicating Layton to be Michael’s father and 

requiring Layton to provide child support and medical support for Michael.

Layton responded to Sharon’s original petition with a general denial, which he 

later amended to assert that Sharon’s action was barred by the statute of limitations. He 

also asserted that retroactive child support was barred by Family Code section 154.131(f) 

and “any award of child support would not be in the child’s best interest because of the 

loss of governmental benefits that would result.”

In June 2011, a hearing was held before the trial court. At the hearing, Sharon 

testified that she was Michael’s mother and Layton was his father. Sharon and Layton 

never married. Sharon testified that when Michael was about three months old, she told 

Layton about his son. 

 

1

Sharon obtained a court-appointed guardianship over Michael’s person and estate in response to 

a motion to dismiss filed by Layton, in which Layton argued that the case should be dismissed because 

“[Michael’s] claim for child support can only be asserted by a guardian of the estate” and therefore 

Sharon lacked standing to pursue this action.
3

Sharon explained that Michael was sick when he was born, and he was diagnosed 

with mild mental retardation at the age of four or five months. Sharon testified that

Michael also suffers from epilepsy, and when he was six years old he began having 

seizures that have worsened over time. Several years ago, doctors performed brain 

surgery on Michael, and Sharon stated that as a result his seizures have lessened. Sharon 

also testified that Michael is incapable of supporting or taking care of himself and it is 

necessary for her to supervise him at all times. Michael receives Social Security disability 

insurance and has received additional assistance through the state. Sharon also testified 

regarding her finances and Michael’s expenses.

On cross-examination, Sharon acknowledged that Michael had previously worked

part-time at a Sam’s Club store retrieving carts from the parking lot. She agreed that he 

was able to perform this job “effectively and satisfactorily” for about eight years until he 

was let go in 2000. She also testified that a government program made the job at Sam’s 

Club possible, and if it had not been for that government program, Michael would have 

been unable to obtain employment. Sharon acknowledged that she had the option to place 

Michael in a residential-care facility to reduce her expenses, but she stated that she would 

never do that. She further stated that she believed it was in Michael’s best interest to live 

with her. 

Daniel Armond, the president and C.E.O. of Golden Rule Services, Inc., a private 

provider for developmentally disabled persons, also testified. Golden Rule offers 

residential-care facilities as well as activities and services for nonresidents. Armond

explained that Michael participates in a state-funded program called “Home and 

Community Based Services,” which provides services and support to people with 

developmental disabilities. Armond testified that the state categorizes Michael as a 

disabled person. In Armond’s opinion, Michael is incapable of self-support. Armond 

explained that in 1991, when Michael was eighteen, he was given a comprehensive 

assessment to evaluate his need for services. The report of the assessment reflected that 

Michael had mild mental retardation with a seizure disorder, and it was recommended 
4

that he be eligible for services to provide assistance and independent-living-skills and 

social-skills training.2 According to the report, Michael’s condition began at birth. 

Layton testified concerning his income, investments, and employment status. 

Layton denied that Sharon told him about Michael when Michael was an infant. 

According to Layton, he did not know of Michael’s existence until Michael was about 

twenty years old and was participating in Special Olympics. After that, Layton sometimes 

socialized with Michael, but when Sharon “started filing lawsuits” around 1994, he felt 

there was a “hostile environment” in her home and he no longer felt welcome to contact 

Michael. According to Layton, he had always been warm and friendly to Michael, even 

though he believed he was a victim of circumstances and had been made to be the “bad 

guy.” When asked if he would provide support for Michael, Layton stated that he was 

willing to provide Michael with transportation so that he could attend activities with 

others his age. Layton also testified that he did not believe that he was Michael’s father, 

and he complained that there was a “rush job on the DNA.”3

When Michael was called to testify, the trial judge first questioned him about the 

difference between a lie and the truth and admonished the attorneys to proceed “very 

gently.” Michael then answered a few questions from each party. Michael testified that he 

enjoyed living with his mother and he knew his address. He explained that sometimes his 

mother gave him money to buy his own clothes. He enjoyed participating in Special 

Olympics. Michael demonstrated that he could spell his first name, and he testified that 

he could read and type on a typewriter. He stated that he liked to walk his dog in his 

neighborhood and he has friends in the neighborhood. Michael testified that he did not 

currently participate in the activities provided at Golden Rule, but he would like to do so. 

Michael also identified Layton in court as his father and said that he liked to spend time 

with him.

 

2 A copy of the report and related documents was admitted into evidence.

3 According to DNA-testing results admitted at trial, Layton could not be excluded as Michael’s 

biological father, and the probability of his paternity was 99.96%.
5

At the conclusion of the hearing, Layton’s counsel moved for dismissal on statuteof-limitations grounds, and also argued that Sharon lacked standing to assert claims on 

Michael’s behalf. The trial court took the matters under advisement. 

On June 30, 2011, the trial court signed a final judgment granting Layton’s motion 

to dismiss and ordering that Sharon take nothing by her suit in either her individual 

capacity or in her capacity as Michael’s guardian. In the judgment, the trial court 

specifically referred to Layton’s argument that Sharon’s suit was “barred by the statute of 

limitation incorporated within former Tex. Fam. Code section 13.01(a), as enacted in 

1983.” Sharon filed a motion for new trial, which the trial court denied. This appeal 

followed.

II

Because is it a matter of jurisdiction, we first address Layton’s contention that 

Sharon lacks standing to pursue a paternity suit on Michael’s behalf. 

A court has no jurisdiction over a claim made by a plaintiff who lacks standing to

assert it. DaimlerChrysler Corp. v. Inman, 252 S.W.3d 299, 304 (Tex. 2008). Standing is 

a component of subject-matter jurisdiction, and subject-matter jurisdiction is essential to 

the authority of a court to decide a case. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 

S.W.2d 440, 443 (Tex. 1993). Standing is never presumed, cannot be waived, and can be 

raised for the first time on appeal. Tex. Ass’n of Bus., 852 S.W.2d at 444–45. We review 

standing under the same standard by which we review subject-matter jurisdiction 

generally. Id. at 446. Whether the trial court has subject-matter jurisdiction is a question 

of law that we review de novo. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 

217, 226 (Tex. 2004).

Layton’s argument is based on his interpretation of Family Code section 160.602, 

titled, “Standing to Maintain Proceeding,” which provides:

(a) Subject to Subchapter D and Sections 160.607 and 160.6094and except 

 

4

Subchapter D and sections 160.607 and 160.609 do not apply here.
6

as provided by Subsection (b), a proceeding to adjudicate parentage may be 

maintained by:

(1) the child; 

(2) the mother of the child; 

(3) a man whose paternity of the child is to be adjudicated; 

(4) the support enforcement agency or another government agency 

authorized by other law; 

(5) an authorized adoption agency or licensed child-placing agency; 

(6) a representative authorized by law to act for an individual who would 

otherwise be entitled to maintain a proceeding but who is deceased, is 

incapacitated, or is a minor; 

(7) a person related within the second degree by consanguinity to the 

mother of the child, if the mother is deceased; or 

(8) a person who is an intended parent. 

(b) After the date a child having no presumed, acknowledged, or 

adjudicated father becomes an adult, a proceeding to adjudicate the 

parentage of the adult child may only be maintained by the adult child.

Tex. Fam. Code § 160.602 (emphasis added). Layton argues that a legal representative 

authorized to bring suit on behalf of an individual who is deceased, incapacitated, or a 

minor as provided in subsection (a)(6) is not authorized to bring suit on an adult child’s 

behalf because subsection (b) provides that only the “adult child” can maintain suit upon 

becoming an adult. 

We review issues of statutory construction de novo. City of Rockwall v. Hughes, 

246 S.W.3d 621, 625 (Tex. 2008). In construing statutes, our primary objective is to give 

effect to the legislature’s intent as expressed in the statute’s language. State v. K.E.W., 

315 S.W.3d 16, 21 (Tex. 2010). We rely on the plain meaning of the text unless a 

different meaning is supplied by legislative definition, is apparent from the context, or 

unless such a construction leads to absurd results. City of Rockwall, 246 S.W.3d at 625–

26.

Subsection (a) provides that the child—and others specifically enumerated—may 

maintain an action to adjudicate parentage, but once the child becomes an adult, 
7

subsection (b) provides that only the adult child may maintain the action. Thus, once a 

child becomes an adult, the other individuals and entities identified in subsection (1)(a) 

are expressly excluded from maintaining a suit to establish parentage. See Office of 

Attorney Gen. of Tex. v. Crawford, 322 S.W.3d 858, 861 (Tex. App.—Houston [1st Dist.] 

2010, pet. denied) (“The use of the word ‘only’ expressly excludes from the scope of 

statutory standing all persons other than those identified.”). 

In the context of the statutory scheme, however, nothing in the statute compels the 

conclusion that the legislature intended to divest a mentally disabled child of the ability to 

maintain an action to adjudicate parentage through a court-appointed guardian upon 

reaching adulthood. Indeed, such a conclusion would be contrary to the legislature’s 

determination that a proceeding to adjudicate the parentage of a child having no 

presumed, acknowledged, or adjudicated father may be commenced at any time, 

including after the date the child becomes an adult. See Tex. Fam. Code § 160.606.5It 

would also lead to the absurd result of allowing a physically disabled adult child to 

maintain an action to adjudicate parentage while prohibiting a mentally disabled adult 

child from doing the same. See K.E.W., 315 S.W.3d at 21. 

We conclude that section 160.602 does not preclude a mentally disabled adult 

child from maintaining an action to determine parentage through a court-appointed

guardian. Therefore, Sharon has standing to pursue the action to determine parentage as 

the guardian of Michael’s person and estate. We overrule Layton’s standing argument. 

III

The limitations statute in effect at the time Sharon filed suit was section 160.606, 

which provides that a proceeding to adjudicate the parentage of a child having no 

presumed, acknowledged, or adjudicated father may be commenced “at any time, 

 

5 The comment to section 160.606 notes that limiting a proceeding to adjudicate parentage after 

the child has reached the age of majority exclusively to the child “prohibits the filing of an intrusive 

proceeding by an individual claiming to be a parent of an adult child, or by a legal stranger.” See Tex. 

Fam. Code § 160.606, NCUSL cmt. Construing section 160.602(b) to permit a mentally disabled adult 

child to maintain an action through a court-appointed guardian does not conflict with this policy.
8

including after the date: (1) the child becomes an adult; or (2) an earlier proceeding to 

adjudicate paternity has been dismissed based on the application of a statute of limitation 

then in effect.” See Tex. Fam. Code § 160.606. We begin our analysis with the 

presumption that a statute is constitutional, and a party challenging its constitutionality 

bears the burden of demonstrating that it fails to meet constitutional requirements. See 

Enron Corp. v. Spring Indep. Sch. Dist., 922 S.W.2d 931, 934 (Tex. 1996).

In the trial court, Layton argued that applying section 160.606 to him would 

violate the Texas Constitution’s prohibition against retroactive laws. Article I, section 16, 

of the Texas Constitution states that “[no] bill of attainder, ex post facto law, retroactive 

law, or any law impairing the obligation of contracts, shall be made.” Tex. Const. art. I, 

§ 16. According to Layton, the statute of limitations applicable to Michael’s action is 

former Family Code section 13.01, as amended in 1983. The 1983 version of section 

13.01 provided as follows:

Sec. 13.01. TIME LIMITATION OF SUIT. A suit to establish the parentchild relationship between a child who is not the legitimate child of a man 

and the child’s natural father by proof of paternity must be brought on or

before the second anniversary of the day the child becomes an adult [ child 

is four years old], or the suit is barred.

SECTION 2. A cause of action that was barred before the effective date of 

this Act but would not have been barred by Section 13.01, Family Code, as 

amended by this Act, is not barred until the period of limitations provided 

by Section 13.01, Family Code, as amended by this Act, has expired.

Act of June 19, 1983, 68th Leg., R.S., ch. 744, secs. 1, 2, 1983 Tex. Gen. Laws 4530, 

4531 (emphasis added).

When this statute became effective on June 19, 1983, Michael was ten years old. 

Layton calculates that Michael then had nearly nine and one-half years, or until he was 

twenty years old, to file suit. Thereafter, Layton maintains, when Michael turned twenty

on December 10, 1992, the statute of limitations on his paternity action expired. By the 

time section 160.606 was enacted in 2001, Layton argues that Michael was twenty-eight 

years old and his cause of action against Layton had expired eight years earlier. Once the 
9

claim was barred, Layton contends he had a vested right to rely on the statute-oflimitations defense, and therefore extending the limitations period of a claim already 

barred would violate the Texas Constitution’s prohibition against retroactive laws. See 

Baker Hughes, Inc. v. Keco R. & D., Inc., 12 S.W.3d 1, 4 (Tex. 1999). 

Recently, the Supreme Court of Texas addressed the Texas Constitution’s 

prohibition on retroactive laws in Robinson v. Crown Cork & Seal Co., 335 S.W.3d 126 

(Tex. 2010).6The Robinson court noted that the presumption against retroactive 

legislation is deeply rooted in our jurisprudence. Id. at 136. The court also acknowledged, 

however, that not all statutes that apply retroactively are constitutionally prohibited. Id. at 

139. Instead, the prohibition against retroactive laws must be governed by its purpose. Id.

at 138. The court concluded that the presumption against retroactivity has two 

fundamental objectives: (1) protecting the people’s reasonable, settled expectations, and 

(2) protecting against abuses of legislative power. Id. at 139. 

Notably, the Robinson court determined that applying the traditional analysis of 

whether a retroactive statute “impairs vested rights” is problematic. Id. at 140. After 

conducting an extensive analysis of cases applying a vested-rights analysis, the court 

concluded that “[w]hat constitutes an impairment of vested rights is too much in the eye 

of the beholder to serve as a test for unconstitutional retroactivity.” Id. at 143. Eschewing 

a bright-line test, the Robinson court instead identified three factors courts are to consider 

in determining whether a statute violates the Texas Constitution’s prohibition against 

 

6

Although Robinson issued six months before the hearing was held and the trial court’s judgment

was signed, neither party cites or discusses the case. Further, Sharon does not expressly argue that section 

160.606 applies to Michael. Nevertheless, the Supreme Court of Texas has held that when the only issue 

is the question of which statute of limitations applies, we should apply the correct limitations statute even 

if the appellee does not file any brief. Ditta v. Conte, 298 S.W.3d 187, 190 (Tex. 2009). Additionally, we 

are instructed to “reasonably, yet liberally” construe an appellant’s brief to reach the merits of an appeal 

whenever it is reasonably possible to do so. Id. In her appellate brief, Sharon argues that former section 

13.01 does not apply to Michael’s claims and she expressly raises an issue concerning which statute of 

limitations should apply. Therefore, even though Sharon does not specifically argue that Family Code 

section 160.606 is applicable, we broadly construe her issues to encompass the question of whether 

applying section 160.606 in this case would violate the Texas Constitution’s prohibition against 

retroactive laws. See id.
10

retroactive laws: (1) the nature and strength of the public interest served by the statute, as 

evidenced by the legislature’s factual findings; (2) the nature of the prior right impaired 

by the state; and (3) the extent of the impairment. Id. at 145. The court emphasized:

The perceived public advantage of a retroactive law is not simply to be 

balanced against its relatively small impact on private interests, or the 

prohibition would be deprived of most of its force. There must be a 

compelling public interest to overcome the heavy presumption against 

retroactive laws. To be sure, courts must be mindful that statutes are not to 

be set aside lightly. This Court has invalidated statutes as prohibitively 

retroactive in only three cases, all involving extensions of statutes of 

limitations. But courts must also be careful to enforce the constitutional 

prohibition to safeguard its objectives.

Id. at 145–46. The court went on to note that “changes in the law that merely affect 

remedies or procedure, or that otherwise have little impact on prior rights, are usually not 

unconstitutionally retroactive.” Id. at 146.

Mindful of the twin objectives of the presumption against retroactive laws, we turn 

to consideration of the Robinson factors in this case. We first consider the nature and 

strength of the public interest served by Family Code section 160.606. As noted above, 

section 160.606 permits a child having no presumed, acknowledged, or adjudicated father 

to commence a proceeding to adjudicate parentage at any time, including after the child 

becomes an adult. Tex. Fam. Code § 160.606. In this case, Michael’s parentage action is 

combined with an action for support of an adult disabled child as provided in the Family 

Code. See Tex. Fam. Code § 154.305(a). Although we have no legislative findings from 

either statute to consider, courts have recognized that “‘[t]he state has a compelling 

interest in assuring that the primary obligation for support of illegitimate children falls on 

both natural parents rather than on the taxpayers of this state.’” See Tex. Dept. of Human 

Res. v. Delley, 581 S.W.2d 519, 521 (Tex. Civ. App.—Dallas 1979, writ ref’d n.r.e.) 

(quoting State v. Wood, 569 P.2d 1148, 1151 (Wash. 1977)); see also Mills v. Habluetzel, 

456 U.S. 91, 104 (1982) (O’Connor, J., concurring) (noting that the state “has a strong 

interest, peculiar to the [s]tate itself, in ensuring that genuine claims for child support are 

not denied”). Moreover, a state “may not invidiously discriminate against illegitimate 
11

children by denying them substantial benefits accorded children generally.” Gomez v. 

Perez, 409 U.S. 535, 538 (1973). Consequently, all states now provide some method for 

requiring fathers to support their illegitimate children. In re J.W.T., 872 S.W.2d 189, 193 

n.14 (Tex. 1994). The public policy of this state reflects the obligation to support both 

legitimate children and illegitimate children. See In re Miller, 605 S.W.2d 332, 336 (Tex. 

Civ. App.—Fort Worth 1980), aff’d by In re J.A.M., 631 S.W.2d 730 (Tex. 1982). For 

children with no presumed father, paternity must first be established to enforce the 

obligation to support. In re Miller, 605 S.W.2d at 336; Delley, 581 S.W.2d at 521. 

Therefore, section 160.606 furthers the state’s compelling interest in ensuring that a 

child’s parents, rather than the taxpayers, support the child because it provides the 

mechanism that enables a child who has no presumed father to establish parentage and 

thereby obtain that support. 

We next consider the nature of the prior right impaired by the statute and the 

extent of the impairment. Here, Layton contends that he has a vested right to the 

operation of the prior statute of limitations to bar Michael’s claims, specifically the 1983 

version of former Family Code section 13.01. To determine whether Layton’s contention 

is correct, we must review the evolution of the Family Code’s limitations statutes 

applicable to paternity actions.

When Michael was born in 1972, the Family Code had not yet been enacted. In 

1973, the United States Supreme Court in Gomez v. Perez held that Texas could not 

discriminate between legitimate and illegitimate children seeking support. See 409 U.S. at 

538. That same year, Texas enacted the Family Code. See In re J.W.T., 872 S.W.2d at 

193 (noting that the Family Code was enacted in 1973).

In 1975, chapter 13 of the Family Code provided that an illegitimate child could 

institute a paternity action only before the child was one year old or the suit was barred. 

Act of June 2, 1975, 64th Leg., R.S., ch. 476, § 24, 1975 Tex. Gen. Laws 1261, 1261–62. 

In 1982, this version of section 13.01 was declared unconstitutional by the United States 

Supreme Court because the statute denied “illegitimate children in Texas the equal 
12

protection of the law” as guaranteed by the Fourteen Amendment to the United States 

Constitution. Mills, 456 U.S. at 102. Following Mills, the Supreme Court of Texas also 

held the statute unconstitutional. In re J.A.M., 631 S.W.2d at 732. 

Chapter 13 was amended in 1981 to provide that a suit to establish paternity must 

be brought before the child is four years old or the suit was barred. Act of June 1, 1981, 

67th Leg., R.S., ch. 674, § 2, 1981 Tex. Gen. Laws 2536, 2536–37. Although the J.A.M.

court expressed no opinion on the constitutionality of the 1981 amendment’s four-year 

statute of limitations, see J.A.M., 631 S.W.2d at 732, the court of appeals in Smith v. 

Cornelius held that this amendment was also unconstitutional based on its analysis of 

Mills and Pickett v. Brown, 462 U.S. 1, 18 (1983), in which the Supreme Court held that 

Tennessee’s two-year statute of limitations on paternity and child-support actions was 

unconstitutional. See 665 S.W.2d 182, 184 (Tex. App.—Dallas 1984, no pet.); see also

Clark v. Jeter, 486 U.S. 456, 464 (1988) (holding Pennsylvania’s similarly worded sixyear statute of limitations for paternity actions unconstitutional). 

In 1983, chapter 13 was again amended to extend the limitations period to two 

years after a child becomes an adult. Act of May 24, 1983, 68th Leg., R.S., ch. 744, § 1, 

1983 Tex. Gen. Laws 4530, 4531. The 1983 version of section 13.01 is the version 

Layton contends applies to bar Michael’s claims.7

In Perry v. Merritte, an action to establish paternity brought in 1979, this court 

held that neither the 1979 nor the 1981 version of section 13.01 applied to a child born 

before those statutes were enacted because the statutes did not expressly provide that they 

were effective retroactively. See 643 S.W.2d 496, 497 (Tex. App.—Houston [14th Dist.] 

 

7

In Dickson v. Simpson, the Supreme Court of Texas held that the one-year, the four-year, and 

the twenty-year versions of section 13.01 unconstitutionally discriminated against illegitimates in a case 

in which the plaintiff was forty-two years old in 1979 and thus was unable to take advantage of any of the 

enactments in her suit to establish paternal inheritance rights. 807 S.W.2d 726, 727 (Tex. 1991). Layton 

does not discuss or attempt to distinguish Dickson, which Sharon cited to support her argument that 

Layton cannot rely on an unconstitutional statute to bar this paternity action. See Blake v. Blake, 878 

S.W.2d 209, 210 (Tex. App.—Corpus Christi 1994, writ denied). We need not consider whether Dickson

applies in this case, however, because as we explain below, the twenty-year statute of limitations 

contained in the 1985 version of section 13.01 does not apply to this action. 
13

1982, no writ); see also Delley, 581 S.W.2d at 521 (holding one-year statute of 

limitations applies only to children born after the statute’s effective date of September 1, 

1975); Alvarado v. Gonzales, 552 S.W.2d 539, 542–43 (Tex. Civ. App.—Corpus Christi 

1977, no writ) (concluding one-year limitations statute did not apply retroactively and 

noting that “[a] statute should not be given retroactive effect unless such construction is 

required by explicit language or by necessary construction”). Because neither version of 

section 13.01 applied retroactively, the Perry court applied the general four-year statute 

of limitations applicable to claims for which no specific limitations period was provided

and held that the limitations period was tolled during the child’s minority. Perry, 643 

S.W.2d at 497. 

Layton argues, however, that unlike the 1975 and 1981 versions of section 13.01, 

the 1983 version—which allowed a child to bring a suit to establish paternity up to the 

age of twenty—was expressly made retroactive and thus applicable to all persons under 

twenty years of age by providing that it applied to causes of action that were barred 

before its effective date. See Act of May 24, 1983, 68th Leg., R.S., ch. 744, § 2, 1983 

Tex. Gen. Laws 4530, 4531. The specific language Layton relies on is contained in 

section 2 of the statute: 

A cause of action that was barred before the effective date of this Act but 

would not have been barred by Section 13.01, Family Code, as amended by 

this Act, is not barred until the period of limitations provided by Section 

13.01, Family Code, as amended by this Act, has expired. 

Id.

Few courts appear to have considered the application of this amendment. In Texas 

Attorney General v. Daurbigny, the alleged father argued that the 1983 version of section 

13.01 did not apply to an action brought by the mother of a child who was a minor at the 

time of the 1983 amendment because her claim was not “barred before the effective date” 

of the statute. See 702 S.W.2d 298, 301 (Tex. App.—Houston [1st Dist.] 1985, no writ). 

The court declined to decide the issue, however, reasoning that even if the statute did not 

apply, the general four-year statute applied and was tolled during the child’s minority. Id.
14

Another court considered similar language contained in a 1989 amendment to former 

section 13.01, which provided as follows: “[t]he children to whom this section applies 

include [a child] for whom a paternity action was brought but dismissed because a statute 

of limitations of less than eighteen years was in effect.” See In re Sicko, 900 S.W.2d 863, 

865 (Tex. App.—Corpus Christi 1995, no writ) (citing Act of June 14, 1989, 71st Leg. 

R.S., ch. 375, § 9, 1989 Tex. Gen. Laws 1477, 1479). In that case, the court concluded 

that this amendment did not apply to the appellant, who was born before the statute’s 

effective date, because “he did not file a paternity action which was dismissed prior to the 

subsection’s enactment.” Id. Having concluded that no specific provision of the Family 

Code applied to the appellant, the court applied the four-year residual statute of 

limitations and held that appellant’s cause of action to establish paternity was barred. Id.

We likewise conclude that the plain language of the 1983 version of section 13.01 

is expressly made retroactive only to claims that were barred before its enactment.8

Therefore, we must determine whether Michael’s claim “was barred before the effective 

date” of the statute. See Act of May 24, 1983, 68th Leg., R.S., ch. 744, § 2, 1983 Tex. 

Gen. Laws 4530, 4531.

As previously discussed, this court and others determined that pre-1983 versions 

of Family Code section 13.01 did not apply to the paternity action of a child born before 

the effective date of the statutes because the statutes were not made expressly retroactive; 

these courts then applied the general or “residual” four-year statute of limitations. See

Sicko, 900 S.W.2d at 865; Daurbigny, 702 S.W.2d at 301; Perry, 643 S.W.2d at 497; 

Delley, 581 S.W.2d at 521; Alvarado, 552 S.W.2d at 543. The court in the more recent 

 

8 We note that in support of his argument against the retroactive application of section 160.606, 

Layton quotes at length from Justice Whitham’s concurrence in Fite v. King, 718 S.W.2d 345 (Tex. 

App.—Dallas 1986, writ ref’d n.r.e.). There, Justice Whitham argued that the majority should have 

reached the appellant’s argument that the 1983 amendment to Family Code section 13.01 allows a 

previously barred claim to be litigated. Id. at 347–48 (Whitham, J., concurring). In Justice Whitham’s 

view, because the 1983 amendment “expressly revives causes of action already barred” it violated the 

Texas Constitution’s prohibition on retroactive laws and is therefore “unconstitutional and inoperative.” 

Id. at 349–50. This is the same amendment on which Layton relies to assert that the limitations provision 

contained in the 1983 version of former section 13.01 applies to bar Michael’s claims. 
15

case of Blake v. Blake applied a different analysis to reach the same conclusion. See 878 

S.W.2d at 210–11. In Blake, the court held that the alleged father was not entitled to rely 

on the 1975 version of section 13.01 after the courts in Mills and In re J.A.M. had 

declared it unconstitutional. Id. at 210. Because unconstitutionality rendered the 1975 

statute a nullity, the court held that the residual limitations period of section 16.051 and 

the tolling provision of section 16.001(b)(1) of the Texas Civil Practice and Remedies 

Code applied. Id. at 210–11. The court noted that except for changing the termination of 

the age of minority from twenty-one to eighteen, the residual statute of limitations has 

remained unchanged since at least 1958. Id. at 211. Accordingly, to determine whether 

Michael’s claim was “barred before the effective date” of the 1983 version of section 

13.01, we likewise apply the residual limitations statute. See id.

With one exception not relevant here, section 16.051 of the Texas Civil Practice 

and Remedies Code provides that “[e]very action for which there is no express 

limitations period . . . must be brought not later than four years after the day the cause of 

action accrues.” Tex. Civ. Prac. & Rem. Code § 16.051. Further, the tolling provision of 

section 16.001 of the Civil Practice and Remedies Code provides that “[i]f a person 

entitled to bring a personal action is under a legal disability when the cause of action 

accrues, the time of the disability is not included in a limitations period.” Id. § 16.001(b). 

A person is under a legal disability if the person is (1) younger than 18 years of age, 

regardless of whether the person is married; or (2) of unsound mind. Id. § 16.001(a). 

Sharon contends that Michael has been under the legal disability of unsound mind 

since birth, and therefore the statute of limitations has never run on his claims. See id. 

§ 16.001(a)(2), (b). If, as Sharon contends, Michael’s action is tolled indefinitely, then by 

its plain terms the 1983 amendment to former Family Code section 13.01 cannot apply 

retroactively because Michael’s claim was not “barred before the effective date” of the 

statute.

The purpose of section 16.001(a)(2) is to protect a person of unsound mind by 

ensuring that a legally disabled person’s right to bring suit will not be precluded by a 
16

statute of limitations, prior to removal of the disability. Ruiz v. Conoco, Inc., 868 S.W.2d 

752, 755 (Tex. 1993); Doe v. Catholic Diocese of El Paso, 362 S.W.3d 707, 722 (Tex. 

App.—El Paso 2011, no pet.). The tolling provision applies to a person who suffers from 

an inability to participate in, control, or understand the progression and disposition of 

their lawsuit. Ruiz, 868 S.W.2d at 755; Doe, 362 S.W.3d at 722. The Ruiz court

considered the effect of the disability of unsound mind, drawing a comparison between 

the legal disabilities of minority and mental incapacity:

It is impossible to avoid the analogy between the situation of the child 

plaintiff . . . and the arguably incompetent plaintiff in this case. 

Traditionally the interests of minors, incompetents, and other helpless 

persons are viewed in law as substantially similar, and both the substantive 

law and the rules of procedure accord them comparable treatment. In many 

respects, mentally incompetent persons present a more compelling case for 

legal protection. They are frequently less communicative, more vulnerable 

and dependent than children. . . . The mentally incompetent are less likely 

than children to have someone intimately interested in their welfare and 

inclined to act in their behalf.

868 S.W.2d at 755 (quoting Tinkle v. Henderson, 730 S.W.2d 163, 166 (Tex. App.—

Tyler 1987, writ ref’d)). The court concluded that the mere commencement of a lawsuit 

by or on behalf of a legally incapacitated individual, considered alone, is insufficient to 

deny the protection of the tolling provision. Id. at 756. In reaching this conclusion, the 

court recognized the possibility that for some plaintiffs the statute of limitations may be 

tolled indefinitely:

We are aware of “[t]he possibility that in a case such as this a limitation 

period may remain open for the lifetime of the plaintiff. . . .” . . . However, 

this possibility

does not dictate a different result: The tolling statute reflects a 

considered legislative judgment that in enumerated 

circumstances the strong policy in favor of prompt disposition 

of disputes must give way to the need to protect a plaintiff 

who is unable to protect himself or herself. That need will 

continue so long as the plaintiff remains incompetent.

Id. (citations omitted).
17

Layton argues, however, that even assuming the tolling provision of section 

16.001 applied, the trial court’s judgment may still be affirmed for several reasons. First, 

Layton contends that Michael’s disability of minority ended when he reached age 

eighteen, and therefore he had until he turned twenty-two on December 10, 1994, to bring 

suit, but he failed to do so. Consequently, Layton contends, Michael’s suit is barred.

Next, Layton argues that Gribble failed to present expert testimony or otherwise carry her 

burden to demonstrate that Michael’s disability of unsound mind began at birth, and 

therefore Michael may not tack the disability of unsound mind onto the disability of 

minority to extend the limitations period. See Tex. Civ. Prac. & Rem. Code § 16.001(c) 

(“A person may not tack one legal disability to another to extend a limitations period.”). 

Finally, Layton argues that it is unclear whether Michael is a person of unsound mind as 

contemplated by the tolling statute, citing Hargraves v. Armco Foods, Inc., for the 

proposition that “persons of unsound mind” are synonymous with “insane persons.” See

894 S.W.2d 546, 547 (Tex. App.—Austin 1995, no writ).

Generally, to prevail on an unsound-mind tolling theory, the proponent of the 

theory must produce either (1) specific evidence that would enable the court to find that 

the incompetent person did not have the mental capacity to pursue litigation, or (2) a factbased expert opinion to that effect. Freeman v. Am. Motorists Ins. Co., 53 S.W.3d 710, 

713 (Tex. App.—Houston [1st Dist.] 2001, no pet.). Thus, expert testimony is not 

required if other, specific evidence is presented. See id. Further, as Hargraves and other 

cases demonstrate, although the term “unsound mind” generally is considered equivalent 

to insanity or incompetency, an individual need not be adjudicated insane or incompetent 

to warrant protection. Hargraves, 894 S.W.2d at 547; Casu v. CBI Na–Con, Inc., 881 

S.W.2d 32, 34 (Tex. App.—Houston [14th Dist.] 1994, no writ). We therefore decline to 

conclude that the legal disability of “unsound mind” necessarily requires that a legally 

incompetent individual be declared “insane” before this tolling provision may apply.

To support Layton’s contention that Michael’s disability of unsound mind did not 

begin at birth, Layton points to Sharon’s testimony that Michael’s “mild mental 
18

retardation” was diagnosed at age “four or five months” and his seizures did not begin 

until age six. But Sharon also testified that Michael was sick when he was born, and at 

age four or five months he was diagnosed with “mild mental retardation.” It is also 

undisputed that Sharon pleaded and testified that she obtained a court-ordered 

guardianship over Michael’s person and estate. Daniel Armond testified that, according 

to an assessment of Michael’s mental and physical condition, Michael’s condition began 

at birth. Further, this assessment, which was admitted without objection, reflected that 

“mental retardation was suspected at birth” and its etiology was “reportedly a virus 

during the late months of pregnancy.” 

Thus, contrary to Layton’s assertion, the record contains evidence that since 

Michael’s birth, he has been a person who suffers from an inability to participate in, 

control, or understand the progression and disposition of his lawsuit. See Ruiz, 868 

S.W.2d at 755. There is no evidence to the contrary. Further, because Sharon has 

presented evidence that Michael’s legal disability of unsound mind began at birth, we 

reject Layton’s argument that Sharon is attempting to “tack” the disability of unsound 

mind to the disability of minority to impermissibly extend the limitations period. See id. 

at 756 (recognizing that statute of limitations may be tolled indefinitely for legally 

incompetent persons).

On this record, therefore, the evidence supports a finding that the four-year 

limitations period has been continuously tolled by Michael’s legal disability of unsound 

mind. Because Michael’s action has been continuously tolled from his birth, it was never 

“barred before the effective date” of the 1983 version of former Family Code section 

13.01. See Act of June 19, 1983, 68th Leg., R.S., ch. 744, secs. 1, 2, 1983 Tex. Gen. 

Laws 4530, 4531. Consequently, the 1983 version of former Family Code section 13.01 

cannot apply to Michael. To the extent the trial court may have concluded otherwise, it 

abused its discretion.

Because the 1983 version of Family Code section 13.01 never applied to 

Michael’s action, Layton never acquired a “vested right” or the settled expectation that 
19

the operation of the statute extinguished Michael’s claims in 1992. See Robinson, 335 

S.W.3d at 146 (noting that “changes in the law that . . . have little impact on prior rights, 

are usually not unconstitutionally retroactive”). The absence of any settled expectation 

that a statute of limitations bars Michael’s action, and the countervailing compelling state 

interest in ensuring that the natural parents of a child assume primary responsibility for 

the child—including a disabled adult child with no presumed father—weighs in favor of 

the retroactive application of Family Code section 160.606, which permits a suit to 

adjudicate parentage to be commenced at any time. 

We need not decide whether section 160.606 applies retroactively to Michael’s

action, however, because even if it does not, the residual four-year statute of limitations

applies in the absence of a more specific limitations provision. See Daurbigny, 702 

S.W.2d at 301; Perry, 643 S.W.2d at 497; Tex. Civ. Prac. & Rem. Code § 16.051.

Further, the running of the limitations period was continuously tolled due to Michael’s 

legal disability of unsound mind. Tex. Civ. Prac. & Rem. Code § 16.001.We therefore 

sustain Gribble’s issues. 

* * *

Because the trial court erred in concluding that the 1983 version of section 13.01 

applied to bar Michael’s claims, we reverse and remand this case to the trial court for 

further proceedings consistent with this opinion.

/s/ Jeffrey V. Brown

Justice

Panel consists of Chief Justice Hedges and Justices Brown and Busby.