Opinion
No. 08-06-00201-CV
August 9, 2007.
Appeal from 394th District Court of Hudspeth County, Texas (TC # 3828).
Before CHEW, C.J., McCLURE, and CARR, JJ.
MEMORANDUM OPINION
Marco Antonio Castro appeals from a default judgment establishing his paternity of J.A.B. and setting child support. We reverse the trial court's judgment and remand for a new trial.
The Attorney General for the State of Texas sued to establish Castro's paternity of J.A.B. and set child support. The trial court ordered parentage testing and set the case for final hearing. Castro did not appear for trial, and the trial court entered a default judgment establishing Castro's paternity of J.A.B. and requiring him to pay both current and retroactive child support. Castro has filed a brief raising three issues pertaining to the paternity and child support determinations. Castro asserts in his first issue that the court abused its discretion in finding that Castro is the father of the child where the results of the paternity testing were not formally admitted into evidence at trial. In Issues Two and Three, he challenges the portion of the order requiring that he pay current and retroactive child support.
The Attorney General has not filed a brief in response to the issues raised on appeal but has instead filed a motion to reverse and remand for a new trial. In apparent response to Castro's first issue, the motion asserts that the parentage test results were "accurately conveyed to the court during the hearing and were eventually filed after the hearing". However, the Attorney General concedes the test results were not properly admitted into evidence during the hearing and for that reason requests, in the interest of justice, that the court's order be reversed and remanded for a new trial in order (1) to determine Castro's paternity through the proper admission of the parentage testing and (2) to establish appropriate orders of support. Castro has filed a response indicating that he joins in the Attorney General's motion to remand the cause for a new trial based on this error.
We have interpreted the Attorney General's motion as one made pursuant to Rule 42.1 of the Texas Rules of Appellate Procedure which permits an appellate court to dispose of an appeal in accordance with an agreement signed by the parties or their attorneys. See Tex.R.App.P. 42.1(a)(2). The commentary to Rule 42.1 states that the rule does not permit an appellate court to order a new trial merely on the agreement of the parties absent reversible error. Tex.R.App.P. 42.1(a)(2) cmt. to 2002 change. By its motion, the Attorney General has conceded that reversible error occurred in the trial court and the Attorney General joins in Castro's prayer that the trial court's judgment be reversed. The parties agree that the cause should be remanded for a new trial. The record before us shows that at the post-answer default judgment hearing, the paternity test results were discussed in open court and the trial judge expressed his understanding that the tests showed that Castro was the father of the child. As represented by both Castro and the Attorney General, the testing results were not formally offered or admitted into evidence. Having reviewed the record, Castro's brief, and the agreed motion, we conclude that the trial court abused its discretion by finding that Castro is the child's father in the absence of properly admitted evidence. We therefore sustain Issues One, Two, and Three, and grant the agreed motion. The trial court's order establishing paternity and child support is reversed and the cause is remanded for a new trial.