### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-18-00107- CV

City of Austin d/b /a Austin E nergy, Appellant

v. Maria De l Rosario Me m breno Lopez as Next F riend of Jaim e Antonio Mem breno Lopez, Appellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 98TH JUDICI AL DISTRICT NO. D-1 -GN-1 5-0 0437 1, H ONO RAB LE ERIC SH EP P ERD, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

This is an appea l from an order by the district court of Travis County deny ing a plea to the jurisdiction in a wrong ful death case . Appellant is the City of Austin (the City ), and appellee is Maria De l Rosario Membreno L opez (Maria ), as ne x t friend for her minor son. This Court will aff irm the order

.

J aime Membreno died in 2009 when he came in contac t with o n e of the City ’s overhe ad power lines while working on a construction job in Austin. Membreno was twenty -six y ear s old and a citizen of El Salvador. J aime was never marrie d to Maria. She asser ts that afte r his death she g ave bir

th to J aime’s son in El Salvador w here she lived. I n 2015, Maria filed a wrong ful death and survival action ag ainst (1) the c ontrac tor

w h o e mp lo y e d Ja im e , ( 2 ) th e o w n e r o f th e b u il d in g u n d e r c o n s tr

u c ti o n , a n d ( 3 ) th e b u il d in g ’ s p r o p e r ty manag er, asser

ting neg lige nce, neg lige nce per se, g ross neg lige nce and “pre mises liability .” L ater ,s h e amende d her petition to add an elec trical-utility contra ctor and the City as defe nd an t s . S h e

claimed that the City “fa iled to u s e re as o nable car e to safe ly opera te and maintain the elec tricdistribution sy stem and its overhe ad distribution lines and poles in particula r.” The City filed a plea to the jurisdiction challeng ing the minor child’s standing to maintain suit pursuant to the Wrongf ul Dea th Statute. See Tex. Ci v. Prac. & Rem. Code § 71.004.

W hen a plea to the jurisdiction challeng es the pleading s, the court must deter mine whether the pleade r has alleg ed fac ts that aff irmatively demonstrate the court’s jurisdiction to hear the cause . Texas Ass’n o

f B u s. v. Texas Air Control Bd. , 852 S.W .2d 440, 446 (Tex. 1993). I f a plea to the jurisdiction challeng es the exis tence of jurisdictional f acts, the court considers rele vant evidenc e subm itted by the parties. Texas Dep’t of Parks & W ildlif e v. M iranda , 133 S.W .3d 217, 227 (Tex. 2004).

The City ’s primary arg ument challeng es the exis tence of jurisdictional fac ts. I n the trial court and in this Court, the City has taken the position that to have standing to sue under the Wrongf ul Dea th Act, an illegitimate child must comply with the require ments of Texas Family Code section 160.201(b), there by establishing a fathe r-c hild rela tionship. The City asser ts corr ectly that 1 the Family Code require ments to establish the fathe r-c hild rela tionship have not been met here

. But ne arly thirty y ear s ag o, the Supreme Court he ld c ontrary to the City ’s ar g ument. See G arza v.

The fathe r-c hild rela tionship is established by (1) an unrebutted presumption of the man’s 1 pater nity , (2) an acknow ledg ement of pater nity , (3) an adjudication of pater nity , (4) adoption of the child, or (5) the man’s consent to assisted repr oduction by his wife, which results in the child’s birth. Tex. Fam. Code § 160.201(b)

. 2Mave rick Mkt., Inc. , 768 S.W .2d 273, 275 (Tex. 1989) (“[I ]t is inappropria te to incorporate the

require ments of leg itimation under the Fa mily Code into the Wrongf

ul Death Ac t.”). The City also claims that there is no proof that the minor child is the dece dent’s bio l o gi ca l son. Maria submitt ed the following jurisdictional evidenc e: two deposition excerpts, two aff idavits, and two DNA te sts. A summary of that proof

follows. Maria swore that the dece dent was the fathe r of the child. I n May and J une 2008, she

was living with the dece dent in his house in El Salvador. Dec edent’ s mother and brother also lived there

. The child was conce ived in May or J une of 2008. She did not eng ag e in sexual rela tions with any one else e x cept the de cede nt from J anuar y 2008 to March of

2009. She g ave bir

th to the child

on Marc h 2, 2009. The child rese mbles the dece dent. M ar i a h as al way s told the child that the dece dent was his fathe r. She named the child afte r the dece dent. She also produce d a medical rec ord in which the dece dent was named as the father of the child. The DN A t es t s t en d to show that the child and the dece dent’s brother have a 99.8% chanc e that they are nephew and uncle. The brother

swore that he had never eng ag ed in sexual rela tions with M ar i a. W e ar e o f the view that Maria marshale d proof from which the f act f inder could conclude that the clea r and convincing evidenc e showed that he r child wa s the son of the de cede nt. See id. at 276.

T h e C i t y also seeks revie w of Maria’ s capa city to asser t a persona l-injury action pursuant to the S urvival Act. The Ci ty included the lack- of-c apacity complaint in the pl ea to the 2 jurisdiction. L ack of capa city to sue, unlike standing , is not a jurisdictional defe ct. In re Bridgestone Ams. T ire Operations, LLC , 459 S.W .3d 565, 573 (Tex. 2015). A ch al l en ge t o a party ’s capacity A personal-injury suit survives i n “fa vor of the heirs, leg al represe ntatives, and e state of 2 the injured pe rson.” Te x . Civ. P rac . & Re m. Code § 71.021(b). 3must be raised by a verified pleading in the t ri al court. Tex. R. Civ. P. 93(1)–( 2); Austin Nursing

Ctr., Inc. v. Lovato , 171 S.W .3d 845, 849 (Tex. 2005). 3

Finally , the City asser

ts that, “Te x as law does n o t p rovi de a jury trial to establish pater nity .” The City arg ues that the trial court, as finder of fac t, should conduct a hear ing befor e trial to de termine the child’s pater nity

. Maria contends, to the contra ry , that at trial on the merits proof of pater nity along with proof on the merits shoul d b e re ce i ved and submitt ed to the jury for deter mination. We d o u b t that this proce dural question is a proper subj ect for determination in an appea l from the denial of a plea to the jurisdiction. See State v. Lueck , 290 S.W .3d 876, 881 (Tex. 2009). More over, the City did not raise the issue in the plea

. The orde r deny

ing the plea to the jurisdiction is aff irmed.

__________________________________________ Bob E. Shannon, Justice Be fore J ustices Goodwin, F ield, and Shannon* Affir med Filed: Jul y

3, 2018 * Be fore Bob E. Shannon, Chief J ustice (r etired) , Third Court of Appe als, sitting by assig nment. See Tex. Gov’t Code § 74.003(b).

The City

filed an unverified “motion to abate ” before it filed t he plea to the jurisdiction. 3 The City did not raise ca

pacity in that motion; instead, it claimed lac k of st anding

. The motion to abate was de nied. 4