CHAPTER 12 - 12-6 Actions Arising Under Titles II or V, Family Code (No Motion Required)

• Jurisdiction: United States

12-6 Actions Arising Under Titles II or V, Family Code (No Motion Required)

Texas Rule 204.4 contains unique standards for actions arising under Title II of the Texas Family Code, regarding children in relation to the family,⁷⁸ or Title V of the Texas Family Code, regarding the parent-child relationship and suits affecting the parent-child relationship (or SAPCRs).⁷⁹ Under the Rule, mental examinations of children and paternity testing may be prompted by a party's motion or the trial court's own initiative. The Rule provides:

In cases arising under Family Code Titles II or V, the court may—on its own initiative or on motion of a party—appoint:

(a) one or more psychologists or psychiatrists to make any and all appropriate mental examinations of the children who are the subject of the suit or of any other parties, and may make such appointment irrespective of whether a psychologist or psychiatrist has been designated by any party as a testifying expert; [and]

(b) one or more experts who are qualified in paternity testing to take blood, body fluid, or tissue samples to conduct paternity tests as ordered by the court.⁸⁰

To date, no Texas court has answered the question of whether, or to what extent, Texas Rule 204.1's requirements apply to mental examinations under Texas Rule 204.4(a).⁸¹ Texas Rule 204.1(c)(2) expressly addresses its relationship to Texas Rule 204.4, providing that "except as provided in [Texas] Rule 204.4, an examination by a psychologist may be ordered when the party responding to the motion has designated a psychologist as a testifying expert or has disclosed a psychologist's records for possible use at trial." The remainder of Texas Rule 204.1, however, is silent regarding its interplay with Texas Rule 204.4. In the absence of explicit guidance, the prudent course of action is to assume that Texas Rule 204.1's requirements apply to examinations under Texas Rule 204.4, except as expressly provided otherwise.

--------

Notes:

^[78] See Tex. Fam. Code §§ 31.001-47.001(c).

^[79] See Tex. Fam. Code §§ 101.001-266.013.

^[80] Tex. R. Civ. P. 204.4 (emphasis added).

^[81] See In re Brown, 277 S.W.3d 474, 478 (Tex. App.—Houston [14th Dist.] 2009, orig. proceeding) ("Darlina asserts that these requirements of Texas Rule . . . 204.1 do not apply to the trial court's orders because they are governed by Texas Rule . . . 204.4. For the purpose of this analysis, it is presumed, without deciding, that the requirements of...