## In the Court of Appeals Second Appellate District of Texas

at Fort Worth

___________________________ No. 02

- 18

- 00029

- CV

___________________________

On Appeal from the 3 24th District Court Tarrant County, Texas Trial Court No. 324

- 577 171

- 15

Before Sudderth, C.J.; Gabriel and Birdwell, JJ. Opinion by Justice Gabr iel 

### I N THE 

### I NTEREST O F 

### J.C. , A 

### C HILD2 OPINION
P.A. (Peter) 1 appeals from the trial court ’ s denial of his petition to adjudicate
parentage , which he brought to establish a father

– c hild relationship with J.C

. (Justin)

. But Justin ha s a presumed father , and Peter filed this sui t more than f o ur years after Justin ’ s birth. In such circumstances, w ith only two exceptions, s ect ion 160.607 of

t he Texas Uniform Parentage Act (TUPA) bars an individual from comm encin g a su it

to adjud i cate parentage
. See Tex. Fam . Code Ann. § 16 0. 607. The trial co u rt found neither exception applie s in this case and thus denied Peter ’ s suit a s untimely

. In his
sole issue , Peter argues , as he did in the tri al court, that h e sho uld not be barred from bringing this suit ba sed upon section 160.607 because that provisio n is
unconstitutional

. Th e trial co urt disagr eed

. So do we. We therefore affirm.
I. BACKGROUND 2
K.C. (Kelly) married I.C. (Ivan) on July 19, 2008 , and they are still marri ed

. They have lived together since their marriage and have never separated. Ju s tin was born to Kelly i n July 2010; thus, Justin ’ s probable date of conception was in eit her

1 To preserve the privacy of the child, we identify the parties by pseudonym s. See Tex. Fam. Code Ann . § 109.002(d).

2 The tr ial court filed fin dings of fact and co nclusions of law, and no party challenges an y o f those fin dings on appe al

. O ur recitation of the facts relevant to this appeal is drawn fro m the trial court ’ s f inding s. See Raman Chan dler P ro p s., L.C. v. Caldwe ll ’ s C reek Homeowners Ass ’

n , 178 S.W. 3d 384, 390 (Tex . App.

— F ort Worth 2005, pet. den ied

) ( “ Unchallenged findings of fact are binding unless the contrary is established as a m atter of law or there is no evide nce t o support the fi nd ings. ” )

.3

S ept ember or October 20 09. Kelly and Ivan engaged in sexual relations on a regu lar
basis during the period of time wh en Justin was concei ved. During that same time period , Kelly was also having sexual relations with Peter , and Kelly ’ s extramarital aff air co ntinued for approximately four years. While she was pregnant with Jus tin , Kelly told Peter that he was Justin ’ s biolo gical father and
continued to tell Pete r th at f act after Justin ’ s birth

. When Kelly told Ivan that she was pregnant with Justin , Ivan believed he was Justin ’ s biological father and c ontinued to believe he was Justin ’ s biological father through at least the first four year s of Justin ’ s life. J ustin knows only Ivan as his father, and Ivan has a close and loving parent

– child relationship with Justin

. In January 2011, Peter obtaine d a DNA test confirming that he is Justin ’ s b iologi cal father. Peter , however, never filed an acknowledgment of p a ternity. Peter
did n ot com menc e this suit to establish the pa ternity of Justin until June 4, 2015.
II. STATUTORY SCHEME
A “ paren t

– child relationship ” in Texas means the legal rela tionship between a
child and the child ’ s parent as provided under chapt e r 160 of the famil y code. See Tex. Fam. Code Ann. § 101.025

. Once e stablished, this legal relati onship confers

numerous rights and duties upon a child ’ s parents
. See id. § 151.001 . For example, a
child ’ s parent has the right to have physical possessio n of the child, to direct the
child ’ s moral and religious training, to make decisio ns concerning the child ’ s education, and t o designate the residence of the child. I d. § 151. 001(a)(1) , (10)

. A4

parent also has t he right to represent the child in a legal a ction and to make other
decisions of substant ial significance con cerning the child. Id. § 1 51.001(a)(7). A
child ’ s parent ha s the right to in herit from and t hrough the child and generally has the right to the services and earnings of the child

. Id. § 1 5 1.001(a) (5), (9). The list goes

on. See id. § 151.001.
The dut ies of a parent are s imi larly vast

. A child ’ s parent has the duty of care, control, protection, and reasonable disci pline of the child

. Id. § 151 .001(a)(2) . A parent has the duty to suppor t the child, a duty that includes providing the child with
clo thing, food, shelter, m edical and dental care, and an education. Id. § 151.001(a)(3).
A parent also generally has the duty to manage the estate of the child. I d. § 151.001(a)(4). And there a r e more. See id. § 151.001

. The parent

– child relationship includes the mother

– child relationship and the
father

– child rel ation ship. See id. § § 101.0 24(a) , .025 , 160.102(11), .201

. Peter desires
to establish the latter between himself and Justin , thereby p lacing in Peter a ll the rights and duties of a parent as described above

. A father

– child relat

ionship c an be
establish ed between a man and a child in the following ways: ( 1) an unrebutted presumption of the man ’ s paternity of the child under Section 1 60

. 2 04; (2) an effective acknowledgment of paternity by the man unde r Subchapter D, [] unless the acknowledgment has been r escinded or successfully challenged; (3) an adjudication of the man ’ s paternity;5

(4) the adoption of the child by the man; or (5) th e man ’ s co nsenting to assisted reproduction by his wife under Subchapte r H, [

] w hich resulted in the birth of the child.
Id. § 160.201 (b). The first and third means are in play here. Under the first means , a father

– child relationship between a man and a c h ild can be esta blished by
p resumption under se veral circumstances, including if the man was married t o the
child ’ s moth er when the child was born. I d. § 160.204(a)(1). That is what happ ened
here: Ivan was married to Kelly when she gave birth to Justin

. T hus , t he law
pres umes that Ivan is Justin ’ s father. See id.
But Peter alleges t hat he, not Ivan , is Justin ’ s biological fat her. Nevertheless,
section 160.20 4

— the statute prescribing the circumstances under which a man is presumed to be a child ’ s fa t h er

— does not presume a man to be a child ’ s father merely
because t he man is the child ’ s biological father

. 3 See id. § 160.204. And if a presumption arises that a man is a child ’ s father under section 160.204 , that presumption is a p articularl y strong on e , even if it so happens that the man is not the
child ’ s biological fa ther

. T he presumption can b e rebutted in only two ci rcumstances : (1) when there is a formal adju dication of parentage in a proceedi ng bro ught f or th at
purpose or (2) when th e presumed f a ther files a valid denial of paternity in conjunction w

ith another person ’ s fi ling of a valid ackn owledge ment of pat erni t y . Id.

3 Of course, it will often be the case t hat a man who is presum ptively a child ’ s father u nder section 160.204 wi ll also b e th e child ’ s biological father , but as this case demonstrates, that i s not alway s so.6

§ 16 0.204( b ) ; In re S.C.L. , 175 S.W.3d 555, 559 (Tex. App.

— Dallas 2005, no pet .)

. So long as the presumption stay s unre butte d , the law de ems the presumed father to be
th e child ’ s father

. T ex. Fam. Code Ann. § § 160.102( 1 3) , .201( b)(1) ; S.C. L. , 175 S.W.3d at 557

. With Ivan as Justin ’ s presumed father , then, Peter does not have a n existing
father

– child relationship w

ith Justin u n der Texas law. See Tex. Fam. Code Ann. § 1 60.201. Instead, b ased on Peter ’ s allegation that he is Justin ’ s biological father,
Peter is an alleged fa ther

. See id. § 101.0015 ( defining “ alleged father ” to mean “ a man who alleges himself to be , or is all e g ed to be, the genetic father or a possible genetic father of a child, but whose paternity has not been de termined ” ). So Peter fil ed this
suit to adjud icate parentage in order to rebut Ivan ’ s presumed

- father statu s and to establish a father

– c h ild relatio n s hip with Justin

. See id. § 160.602(a)(3).
If a child does not have a presumed, acknowledged , or adjudicated fat her, a person with stan ding to brin g a suit to adjudicate th e parenta ge of the chil d may file
that suit at an y time

. See id. § § 1 6 0. 602, . 606

. B ut that is not so if the child has a presumed father , as Justin does here

. S ection 160. 6 07 applies to that s itu ation, and it provi des as follows: (a) Except a s otherwise provided by Subsection (b), a proceeding brought b y a pr esumed father, the mother , or another individual to adjudicate the parentage of a child having a presumed father shall be commenced not la ter than the fourth annive rsary of the date of the birth of the child.7

(b) A proceeding seeking to adjudicate t he par entage of a ch ild having a presumed father may be maintained at any time if the court determines that: (1) the presumed father and the mo the r of the child did not live togethe r or engage in sexual intercourse w ith each other during the probable time of co nception; or (2) the pre s u med father was precluded from commencing a proceeding to adjudicate the parentage of the child before the expir ati on of the time prescrib ed by Subsec tion (a) bec ause of the mistaken bel

ief that he was the child ’ s biological fathe r based on mis representat

i o ns that led him to that conclusion.
I d. § 160. 6 07; see S .C.L. , 175 S.W.3d at 557

. Thus, with two ex ception s ( wh ich do not apply here ) , if a ch ild has a pr esum ed father, a proceeding to adjudicate the child ’ s parentag e m ust be brought no l ater than
the c hild ’ s fourth bir thday. 4

II I
. TRIAL COURT PROCEEDI NGS From the time they filed their initial pleadings in t his case , Kelly and Ivan
asserted that Peter ’ s suit was barre d by section 160.607 ’ s four

- year statute of
limitations

. And f

or the first two y ear s that this cas e was pending before the trial

court , Peter asserted only one basis for avoi ding section 160.607 ’ s appli cability : he
cl aimed tha t Kelly and Ivan should be bar red from assertin g section 160.607 ’ s time
limitation based on the doctrine of equ i t a ble estoppel. Peter did not raise a challenge

4 T here is a lso a four

- year limitation s period in cases whe n a child has an ackn owledged or adjudicated father. In t h ose cases, a person generally m ay not initiate an adjudic ation suit more than four years after the effective date of the acknowledgement or adjudication. See T ex. Fam. Code An n. § 160. 609.8

to se ction 1 60. 607 ’ s c onstitutionality until he filed his s econd amended p e titio n to adjudicate parentage on June 5, 2017, two years after h e in it iated this suit and only
two weeks before the scheduled ben ch t rial

. 5 In his live pleading , Peter asserted that

s ection 160.607 i s unconstitutional u nde r the Fourteen th A mendment ’ s E qual
Pr otection and Due Process C lauses as well as under Texas constit ution article I,
section 19 ’ s due

- course

- of

- law guarantee
. 6
Bu t Peter did not present the trial court with any arg uments related to the
constitutional c hallenges he ra ised in his live pleading un til h is closing argument at
trial. Even then, Peter ’ s constitutional argument wa s meager. The record shows that
Peter ’ s p r i mary focus during trial remained his c ontention that section 160.607 was
i napplicable based on equitable estoppel, and that basis for avoiding se ction 160.607
dominat ed his closing argument
. H is entire argument related to section 160.607 ’ s

c onstitutiona l i ty was the following : In fac t, the Supreme Court of the United Stat es has recentl y ruled that a court may not treat a married p arent differently than a single parent, and because of the minor exceptions in the statute at bar here, it does just that. So w e ’ re asking the Court to find on its face that it ’ s unconstitutional and inapplica ble

. . . .

5 The parties agreed to a reset of the trial , and Peter amended his pleadings twice more, leaving his fourth amended petition to a djudicate parentage as his live pleading

.

6 With respe ct to his due

- course

- of

- law chall enge, ot her than qu oting article I, section 19, Peter pleaded only that “ [u] nder this provision, P etitioner seeks to obtain a judicial determination entitling hi m to both the rights and obligations of a ‘ parent. ’ ”9

The trial court too k the case under advisement and on October 9 , 2017, sent a letter informing the parties that it had det ermined sect ion 160.607 was constitut

i onal.
On December 18, 2017, before the tri al court si gne d a final order, Peter filed a
motio n asking i t to recon sider its determination that section 160.607 was constitutional. In that motion, Peter , relying on cases from the United States Suprem e C o u r t , argued that th e trial court had to su bject section 160.607 to strict scrutiny because it inf

ringed upon a fundamental right and created a suspect
classification

. 7 And he argued that section 160.607 was unconstitutional because it
could n ot s u rvive suc h scrutin y. The t rial court held a hearing on Peter ’ s motio n . Echo ing the arguments in his motion, Peter maintained that section 160. 607 was unconstitutional because it infringed on “ a biological parent ’ s rights t o their own chi ld , ” which the “ Supreme
C ourt ha[d] held [to b e] a fundamental constitutional right. ” He also argued that

7 Whil e Peter did cite to four Texa s cases , he di d so to support his conte ntion that section 160.607 infringed on a fundamental righ t. And none of the four Texas cases he cited in v olved con stitutional challenges to a statute , whether u nder the federal or state constitutions

. See generally Hol ick v. Smi th , 685 S.W. 2d 1 8, 21 (Te x. 1985) ( holding evidence legally insuffici ent to support trial court ’ s order terminati ng m other ’ s paren ta l rights under termination statute ); In re G.M. , 596 S. W.2d 846, 84 7 (Tex. 1980) (holding that paren tal termi nations m ust b e based on clear and convincin g evidence) ; Wiley v. Spratlan , 5 43 S.W.2 d 3 49, 352 (Tex. 1976) ( holding evidence legally insufficient to s upport trial court ’ s order terminati ng m other ’ s paren ta l rights under termination statute ) ; Gunn v. Cavanaugh , 3 91 S.W. 2 d 723, 72 4 , 726

– 27 (Tex. 1965 ) (holdin g t hat father

— whose parental rights w ere terminated despite the fact he was never served

— had a re m edy , but the remedy was by bill of review rather than b y writ of error)

.10

sect ion 160.607 created a suspect class because it differentiated between “ a married
man and an unmarried man. ” H e e laborated, s tating that under the family code, “ [a]
biol o g ical parent can file a paternity suit at any poi nt that they determine that they may be the father of the child, except if [the] mother was married at the time the child
was born , ” and thus, section 160.607 re su l ts i n treating two classes of p eople
d iffe r ently.
Peter further argued that beca use section 160.607 infringed on a fundament al right and created a suspect class, the trial court had to apply strict scruti ny and that

“ statutes that are subject to str ict scru tiny are almost always struck down as

u n constitutional. ” Peter asser ted that there was “ no important governmental interest ” in denying his ability to establish parenta ge more than four years after Justin ’ s birth.
Peter asked the t rial cou rt to “ r eview the cited Supreme Court cases that [he ha d ] previously provid ed, and to apply the strict scrutiny application and find that the
statute that barred [him] from bringing this suit more than four years after the birth of
the child is unc onstitut

ional. ” Following the hearing on Peter ’ s motion to re c onsid er, th e trial court denied
the motion and signed an order denying his petition to adjudicate parentage

. Upon
Peter ’ s request, the trial court filed finding s of fac t and conclusions of law. T he trial

court made two conclusions of law that are releva n t here . First, the trial court
concluded that Peter had failed to file his suit to adjudicate parentage within the11

limitatio ns period provide d i n section 1 60.607. And second, it concluded that sec tion
1 60.60 7 is constitutional.
I V
. DISCUSSION
In his s ole issue, Peter challenge s the trial court ’ s c onclusio n that section
160.607 is constitutional , arguing that i t violate s both the state and fe deral
constitu tions

. But the arguments in his brief supporting that assertion a re di fficult to
discern

. Peter m ak es reference s in his brief to the du e

- course

- of

- law guarantee in article I, section 19 of th e Texas constitution. S ee Te x . Const. art. I , § 1 9

. He also
references the Fourt eenth Amendment ’ s E qual P ro tection Clause. See U.S . Const.

amen d. XIV, § 1

. P e ter additionally makes a passing reference to “his constitutiona l righ t to . . . equal protection” guaranteed in the Tex as cons titution

. 8
A. S TANDARD OF R EVIEW
T he trial court ’ s determination that section 160. 607 is co nstitutional is a legal
conclusion that we review de no vo . See Lund v. Giauque , 416 S .W.3d 122, 126 (T ex.

8 Peter appears to a rgue that section 1 60 .607 vi olates hi s const itutional rig ht to equal protection “ as gu aranteed in Texa s [c]onstitution, artic l e I, section 19

. ” While the Texas constitution has an equal

- p rot ection provision that is similar to the Equal Protect ion Clause in the federal Co nstitution ’ s Fourteenth A men dment, that pr ovision does not appear in article I, section 19 but is instead found in art icle I, section 3. Compare Tex. Const. art

. I, § 3 , w ith Tex. Const. art

. I, § 19

. S ee generally Gatesco Q.M. Ltd. v. C

ity of Houston , 503 S.W .3d 60 7, 621 (Tex. App

. — Houston [14t h Dist.] 2016, no pet. ) ( “ The le gal standard for the equal

- protection analysis under article I, section 3 of the Texas [c] onstitut ion is the same as the legal standard for the analysis under the Equal Protec tion Clause of the Fourteent h Amend ment to the Un ited States Constitution. ” ). Peter d id not cite t o article I, section 3 in his brief.12

App.

— Fort Worth 201 3, no pet. ). W e begin with a strong presumption that section
160.607 is constitutional. See Tex. Gov ’ t Code Ann. § 311.021(1) ; Whitworth v. Bynum , 699 S.W .2 d 194, 196

– 97 ( Tex. 1985) ; Sande rs v. Palunsky , 36 S.W.3d 222, 2 24 (Tex. Ap p.

— Houston [1 4th Dist.] 2001, no pet.)

. And a s the p arty making a constitut ional challenge , Peter has the burden to establish section 160. 607 ’ s unconstitutional ity. See
Lund , 416 S.W.3d at 126

– 27

. B
. P ETER D ID N OT P RESERVE H IS C ONSTITUTIO NAL C O MPLAINTS B ASED O N T HE T EXAS C ONSTITUTION To preserve a complaint for appellate review, a party must present to the trial court a timely request, objection, or motion that states the specific grou n ds for the
desi red ruling, if not apparent from the r equest ’s, objection’s, or motion’s context. S ee Tex. R. App. P. 33.1(a)(1)(A)

. If a party fails to do this, error is not preserved. Bushell
v. Dean , 803 S.W.2d 711, 712 (Tex. 1991) (op. on reh’g). A d ditionally, t he complaint a party raises on appeal mu st mat ch th e complaint the party presented to the trial court

. See Banda v. Garcia , 955 S.W.2d 270, 272 (Tex. 1997). The se error

- p reservation rules apply to constitutional challenges. See Dreyer v. G r eene , 871 S.W.2d 697, 698 (Tex. 1993) ( “ As a rule, a claim, including a constitutional claim, must have been asser ted in the trial court in order to be raised on appeal. ” ) ; Miles v. Jerry Kidd Oil Co

. , 363 S.W.3d 823, 8 28

– 29 (Tex. App.

— Tyler 2012, no pet. )

. As outlined above, Peter included in his live plead ing a conclusory allegation that section 1 60.6 07 violates th e due

- course

of

- law guarantee d under article I, section 19 of the Texas constitution , but he never13

presented the trial court with any spec ifi c arguments related to that contention

. And
he neither pleaded n or argue d that section 160.607 viola tes the Texas constitution ’ s

e q u a l

- p r o t e c t

i o n g u a r a n t e e . Thus, Peter failed to preserv e his complaints b ased on
the Texas const

itution ’ s due

- course

- of

- law and equal

- protection guarantees. See Miles , 363 S.W.3d at 8 28

– 29 (

holding that appellant f

ailed to p reserve equal

- protection and
due

- course

- of

- law c omplaints based on the Texas constitution because he did not
raise th em in the trial court ).
C
. P ETER ’ S E QUAL - P ROTECTION C HALLENGE T O S ECTION 160.607 F AILS
In his brief, as he did i n the trial court, Peter conten ds th at section 160.607 violates the Equal Protection Clause because it is required to , but cannot , survive
strict

- scrutiny review. He argue s tha t strict scrutiny is the appropriate standard
because section 160.607 infringes on a fund amental right and creates a suspect
classification

. Peter did n ot argue i n th e trial court, and does not argue on appeal, that
section 160.607 violates the E qual Prot e ction Clause under a constitutional standard
that is more deferential than strict scrutiny , such as ration al basis. 1. Applicable Law The Equal Protec tion Claus e is “essentially a direction that all persons similarly
situated should be treated alike.” C ity of Cleburne v. Cleburne Living Ctr. , 473 U.S. 432,
439 (1985). T h is clause “ does not require that all persons b e dealt with identically, but
it doe s require that a distinction made have some relevance to the purpose for which
the classification is ma d e. ” Bax s tro m v. Herold

, 383 U.S. 107, 11 1 (1966). When14

analyzing a c laim that a statute violates the Equa l Protecti on Clause, the level of scrutiny we apply depe nds upon the nature of the rights affected. Mau ldin v. Tex. St ate Bd. of Plu mbing Exam ’

r s , 9 4 S .W. 3d 867, 871 (Tex. App.

— Austin 2002, no pet.). If the

statute implicates a fundamental right or a suspect cl ass , then we apply strict scrutiny , under which the statute will be upheld only if it is narrowly tailored to further a compelling government interest

. 9 Mau ldin , 94 S.W.3 d at 871 , 873 ; see City of Cleburne , 473 U.S

. at 440; Wood v. Collier , 836 F.3d 534, 5 38

– 39 ( 5th Cir. 2016). Otherwise, w e apply rat ional basis , under which the challenged statute will be upheld if it rationally
furthers a le g

itimate government interest. Mauldin , 94 S .W.3d at 871; see City of
Cleburne , 473 U.S. at 440 ; Wood , 83 6 F.3d at 5 39.
2 . Fundamental Right
We conside r first Pet er ’ s contention tha t strict scrutiny applies here because
section 1 60. 6 07 infringes upon a fu n damental right.
In the context of analyzing whether a statute burdens a fundamental righ t under the Equal Protection Clause , fundamenta l r ight s a re those that are , “ objectively, deeply rooted in this Nation ’ s history and tradition ” and “ implicit in the c oncept of ordered liberty, such that neither lib erty nor justice would exist if they w e re

9 St rict scrutiny is a demanding sta ndard

. Mance v. Sessions , 896 F.3d 699, 705 (5th Cir. 2018 ). T he Supreme Court of the United States ha s stated that al though strict scrutiny does not always result in a statute being struck down su ch that the standard is “ strict in theory , but fatal in fact, ” se e Adarand Const ructors, Inc. v. Pena , 515 U.S. 200, 237 (1995), nevertheless , it is rare that a statute will sur vive strict
sc ruti ny, see Burson v. Freeman , 504 U.S. 191 , 211 (1992).15

sacr ificed. ” Washington v. Glucksberg , 521 U .S . 702 , 720

– 21 (1997) ( citations and internal quotation marks omitted )

. 10 Analy zing whether an asserted right is
fundam e ntal first r equires a careful description of the asserted right. M orrissey , 871 F.3d at 1 269 ; s e e Gl

ucksberg , 521 U.S. at 721 ; Schlittle r v. State , 488 S.W. 3d 306, 313

– 14 (Tex. Crim. App. 2016).
We note that the fundamental right Peter claims section 160

. 607 infringes is far
from careful ly arti culated

. Peter a ppears to contend that because he i s Justin ’s
bio logical father , he has a f undamental righ t to establish a parent

– child rel ationship
with Justin even though Justin has a presumed father , and Peter c l aims section
160.607 denies him that right be cause it bars him from seeking to establish that
relatio nshi p
. B ut it is imprecise to s ay that se ction 160.607 bars Pet er from seeking to
establis h a parent

– child relationship with Justin because th at provisio n does no such thing. To the contr ary, even though Justin has a presumed fat her, TUPA as a whole provides, and the provisions of section 160.607 presuppose , that Peter has standing as

10 Although G lucksberg involved whether an a sse rted right was “ fundamental ” under the Fourteenth Amendment ’ s Due Process Cl ause rathe r than its Equal Protection Clause, th e test for determining whether a n asserte d right is a fundamental
r ight that triggers strict scrutin y is the same under both of those C lauses. See Scally v. Tex. St ate Bd. of M

ed . Exam ’rs , 351 S .W.3d 434 , 448 n. 18 (Tex. App.

— Austin 2011, pet. denied ) ( citin g Glucksberg tes t as the test for determinin g whether an asserted right was a fundamental right fo r purposes of analyzing the appellant ’ s challenge under the E q ual Protection Clause) ; see also Morrissey v. Un ite d States , 871 F.3d 1260, 1269 & n.7 (11th Cir . 2017) (

looking to cases that analyzed whether asserted rights w ere fund amental under the Due Pro cess Clause in order to determine whether appellant ’ s a sserted ri ght wa s fundamental under the Equal Protectio n Clause )

.16

Justin ’ s alleged father t o bring a suit to adjudicate parentage

. See T e x. Fam. Code
Ann. § 160.602(a)(3) (gen erally conf erring standing to file a p roceeding to adjudicate
parentage on “ a man whose pater nity of the child is to be adjudicated ” ) , § .607 (a) (providing that even when a child has a presumed father, a person with s t anding may
br ing a n adju dication suit , s o long as he does so by the child ’ s fourth birthday) ; see also
In re Sullivan , 1 57 S.W. 3d 911, 919 (Tex. App.

— Houston [14th Di st.] 2005, orig. proceeding) (not

ing that at a minimum, section 160.602(a) (3) confers sta n ding on an alleged father to prosecute a n adjudication suit ).
What section 1 60.60 7 actually bars Peter from d oing is initiating an adju dication suit to establish a parent

– child relationship with Justin after his fourth
b irthday because Justin has a presum e d father

. See Tex. Fam

. Code Ann. § 160.60 7( a). Thus, a careful descriptio n of the right Peter argues is fundamental is the right of an alleged father to commence a paternity suit for the purpose of establish ing a parent

– child relationship with a child w ho has a presumed fathe r after the child ’ s fou rth
bi rthday. Having carefull y described the asserted fundamental right, we mus t consider
whether it is , “objectively, deeply rooted in this Nation’s history and tradition” a nd “implicit in the concept of ord e red liberty, such that neither liberty nor just ice would
exist if [it] were sacrificed.” Glucksberg , 52 1 U.S. at 720

– 21 ; see Morr issey , 871 F.3d at
1269

. We conclude the answer is no.
We find the United States Supreme Court ’ s deci sion in Michael H. v. G e rald D.
instructive to the historical inquiry h ere. See 491 U.S. 11 0 (1989)

. There, as here, the17

husband ’ s wife engaged in an adult erous af fair that resulted in a child ’ s being

conce ived. See id. at 113

– 14. But t he husband and wife remained married, a n d the
child who was conce ived during the wife ’ s affair was subsequently born during the marriag e . See id. As a result, state law p resumed the husband to be the child ’ s father.
See id. at 11 7

– 1 8. The child ’ s biol ogical fat her eventually filed a lawsuit se eking to rebut that presumption and to estab lish paternity

. S ee id. at 11 4. But under state law,
the biol ogical father had no standing to bring such a suit , only the husb and or wife
did

. See id. at 115, 117

– 1 8

. So the biological father lost on summa r y judgment , and his case found its way to the United States Supreme Court , w hich addressed the biological father ’ s contention that the statutory scheme prohibiting him from rebutting the presumption that the husband was the child ’ s father and from
establi s hing his own paternity deprived him of su bstantive due

- process rights under
the Fourteenth Amendment

. See id. at 115

– 1 6. After conducting a historical inquiry, a pl urality of t he C ourt concluded that

our society did not have a traditional pr actice eith e r of conferring standing to a biological father to assert pa ternity to a chi ld born during the mother ’ s marriage to
another man or of according the biologica l father s ubstantive parental r ights in that
circums tance. See id

. at 12 4

– 2 7 (explaining that not h ing in the older sources or older

cases s pecifically addressed “ the power of the natural father to as sert parental rights
over a child born into a woman ’ s existing marriage with another man ” and that nothing in the case law showed that the states “ in fact a ward[ed] substantive parental18

rights to t he natural father of a child concei ved within, and born into, an extant
marital union that wishe [d] to embrace the child ” ). Th e plurali ty thus concluded that
the state stat utory scheme that pro hibited the biologic a l father from es tablishing paternit y did no t infringe up on any fundamental r ight protected by the Fourteenth
Amendment

. Id. at 127. In the plurality ’ s view, it was “ a question of leg islative policy
and not constitutional law whether [the state would] al l ow the presumed parenthood of a couple desi ring to retain a child conceived within and born into their marriage to
be rebutted. ” Id. at 129

– 30.
The facts of this case are stri kingly similar to those present in Michael H

. , though the statutory scheme that Peter challenges in this case does differ from tha t at
issue in Michael H. I n Michael H. , the challenged statut ory scheme completely barred

t he biological father from challenging the paternity of a child born into a woman’s existing marriage and thus den i ed him any ab ility to establish parental rights. See id. at 115, 117

– 1 8

. But the statut ory schem e that Peter challeng es in this case is much more favorable to him than t he one at issue in Michael H

. was to the biological father there

. As noted abov e, T U PA affords a p erson in Peter ’ s shoes the a bility to bring a suit to adj udicate par entage so long as he init iates that proceeding by the child ’ s fourth birthday. I f

, as the plurality concluded in Michael H

. under facts similar to those here,

a statut o ry s c heme that barred the biological father from bringing a suit to adjudica te
pa rentag e at any time did not infringe on his fundamental rights under the Fourteenth
Amendment , we cannot see how a stat utory s cheme that allows the biological fathe r19

to file s uch a suit by the child ’ s fourth birthday wou ld. Cf. S.C.L. , 175 S.W.3d at 5 58 ( holding that section 1 60.607 ’ s four

- year period of limitations to commence adjudication suit did not violate biological father ’ s due

- pr ocess rights under the
Fourteenth Amendm ent

)

. Accordingly, we hold that Peter has not established that
the Fo urteen th Amendment affords him a fundamental right to commence a suit to adjudicate pare ntage after Justin ’ s fourth birthday

. Having concluded that Peter failed to show that section 160. 60 7 b urdens a fundamental right, we now consider whether it implicates a sus pect class. See Mau ldin , 94 S.W.3 d at 871 , 873 ; see also City of Cleburne , 473 U.S

. at 440; Wood , 836 F.3d at 5 39

. 3
. Suspect Class
While it is clear that Peter means to argue t hat s ection 160.607 burdens a suspect class , it is not at all c lear what he believes th at su spect class to be. He broadly

asserts that “ laws that treat people differently cannot stand without meeting the
he igh t ened scrutiny standard

. ” But that is not so. A s tatute is subject ed to strict scrutiny under the Equal P rotectio n C lause only if it implicates a fundamental right or

a suspect cl ass . Mau ldin , 94 S.W.3 d at 871 , 873 ; see City of Cleburne , 473 U.S

. at 440;
Wood , 836 F.3d at 5 39

. A suspect c la ss is o ne t h at has been “ saddled with such disabilities, or subjecte d to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political pro cess.” M ass . Bd. of Ret

. v. Murgia , 427 U.S. 307, 313 (1976) ( quoting San Antonio I n dep. S c h. Dist. v. Rodriguez

, 411 U. S. 1,20

28 (197 3)) ; accord In re H.Y. , 512 S.W.3d 467, 475

– 76 (Tex. App.

— Houston [1st Dist.]
2016 , pet denied). Examples of suspect classes are those based upon gender, race, alienage, and national orig in. See Sonnie r v. Quarte rman , 476 F.3d 349, 368 n.17 (5th Cir.
20 07); Mauldin , 94 S.W.3d at 87 1 (citing Frontier o v. Richardson , 411 U.S. 677, 688 (1973)).
Peter does not assert that section 160.607 c reates a class based on any of the
characterist

ics that courts have historicall y held to be su spect
. Instead, Peter appears

to contend that section 160.607 creates a suspect class mere ly because it treats an alleged father differently from a presumed fat h er. B ut a ssuming that section 160.60 7 draws such a distinction, Peter offer s ne ither authority nor expl anation as to how that distinction creates a suspect class that triggers strict scrutiny

. Because stric t scrutiny

“ requires an exacting investigation o f legi slative choices, the Supreme Court has made
clear that ‘ respect for the separation of powers ’ should make courts reluctant to establish new suspect classes. ” Thomasson v. Perry , 80 F.3d 9 15, 928 (4th C ir. 1996) (quoting City of Cleburne , 473 U.S. a t 441)

. We cannot conclude that section 160. 6 07
burdens a suspect class based on nothing more than Peter ’ s broad and bare assertions
that section 160. 6 07 treats him differently than it does a pr esumed father

. Acc ordingly , we hold that Peter has failed to show t hat section 160.607 burd ens a suspect class.21 4
. Strict Scrutiny Does Not A pply
We have concluded that section 160. 6 07 does not implicate a fundamental right

or a suspect class. Accordin gly, strict scru tiny does no t apply

. See Mauldin , 94 S .W.3 d at 871; see also City of Cleburne , 473 U.S. at 440 ; Wood , 836 F.3d at 5 39

. B oth in this court and in the trial court, t he only basis Peter presented for holding section 160. 6 07
unconstitutional was that it had to, bu t could not, withstand strict

- scrutin y review

. Peter has not asserted that section 160. 6 07 is unconstitutional even under a less

r i gorous standard , such as rational basis. T hus , our conclusion that strict scrutiny i s not the applica ble standard to apply i n reviewing section 160. 6 07 ’ s consti t utionali ty is dispositive of Peter ’ s sole issue. See Tex. R. App. P. 47.1; Rami rez v. State , 557 S.W.3d 717, 721

– 22 (Tex. App.

— Corpus Christi

– Edinburg 2018, pet
. ref

’ d ) ( concluding that

court ’ s h olding that challenged st atute was not subject to strict

- sc r utiny re vi ew was dispositive of the appellant ’ s constitutional challenge whe n the appellant ’ s only argument for striking down the stat ute was that the statute could not withstand strict

scrutiny revie w

). Accordingly, we ove rrule Peter ’ s sole issue.

V
. CO NCL USION
Ha ving overruled Peter ’ s sole issue, we affirm the trial court ’ s judgment. See Tex. R. App. P. 43.2(a). /s/ Lee G a briel Lee Gabriel J ustice
Delivered: August 2 7 , 2019