City could not use Family Code legitimation to challenge standing in wrongful death case

City of Austin d/b/a Austin Energy v. Maria Del Rosario, 03-18-00107-CV (Tex. App. – Austin, July 3, 2018)

Jaime Membreno died in 2009 when he came in contact with one of the City’s overhead power lines while working on a construction job in Austin.  Membreno was a citizen of El Salvador. Jaime was never married to Maria. She asserts that after his death she gave birth to Jaime’s son in El Salvador where she lived.  She sued the City on behalf of her minor son under a premise-defect theory of liability. She claimed that the City “failed to use reasonable care to safely operate and maintain the electric distribution system and its overhead distribution lines and poles in particular.” The City filed a plea to the jurisdiction which was denied. The City appealed.

The City asserts to have standing to sue under the Wrongful Death Act, an illegitimate child must comply with the requirements of Texas Family Code §160.201(b), thereby establishing a father-child relationship. However, the Texas Supreme Court has previously held it is inappropriate to incorporate the requirements of the Family Code for legitimation into the Wrongful Death Act. Additionally, in order to try and establish a father-son relationship, Maria had a DNA test performed of Jaime’s brother. The decedent’s brother had a 99.8% chance that they are nephew and uncle. The brother swore that he had never engaged in sexual relations with Maria. Maria showed the birth certificate demonstrating Jaime was listed as the father and provided her own affidavit. The court held Maria marshaled proof from which the fact finder could conclude that the clear and convincing evidence showed that her child was the son of the decedent. The City asserted Maria also lacked capacity to sue, however, a lack-of-capacity challenge is not jurisdictional. As a result, the City’s plea was properly denied.


If you would like to read this opinion, click here. Panel consists of Justice Goodwin, Justice Field and Justice Shannon. Memorandum Opinion by Justice Shannon. The attorney listed for the City is Ms. Chris Edwards.  The attorneys listed for the Plaintiffs are Sean B. Swords and David C. Wenholz.

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