Appeal from the County Court at Law No. 2 Galveston County,
Texas Trial Court Case No. 16FD3374
consists of Justices Lloyd, Kelly, and Hightower.
Thomas Wayne Florence appeals the trial court's dismissal
of his suit to deny paternity of J.M.G., a minor, under
chapter 160 of the Texas Family Code, which applies to
"presumed fathers." We affirm.
was convicted of sexual assault of a child upon proof that he
had engaged in sexual intercourse with A.M.G. when she was 16
years old and he was 40 years old. See Florence v.
State, No. 01-11-00822-CR, 2013 WL 3957696, at *1 (Tex.
App.-Houston [1st Dist.] July 30, 2013, no pet.) (mem. op.;
not designated for publication). He was sentenced to 70 years
in prison. Id. In 2010, A.M.G. gave birth to J.M.G.,
who is the subject of this suit, and "a DNA test
identified appellant as the father of the child."
2013, this court affirmed Florence's conviction.
Id. at *10. When he failed to timely file a petition
for discretionary review in the Texas Court of Criminal
Appeals, this court's mandate issued, and the trial
court's judgment of conviction became final. See In
re Florence, No. 01-15-00295-CR, 2015 WL 2229050, at *1
(Tex. App.-Houston [1st Dist.] May 12, 2015, orig.
proceeding) (mem. op.; not designated for publication).
November 2016, Florence filed an original petition of denial
of paternity of J.M.G. under section 160.303 of the Texas
Family Code. Tex. Fam. Code § 160.303. Nobody was served
with citation of this petition. Florence filed numerous
pleadings and letters with the trial court. The trial court
dismissed the case with prejudice, finding in its final
judgment of dismissal that the suit was "barred by res
judicata and/or by Section 160.607 of the Texas Family
appeal, Florence asserts that the court erred by dismissing
the case with prejudice. In his first issue, he argues that
"structural and cumulative errors" denied him a
fair trial. He contends that the court asserted affirmative
defenses on behalf of the respondents, who were never served
and who never pleaded affirmative defenses. He argues that
this showed that the court was not neutral. In his second
issue, he argues that the court erred by not rendering
judgment on the pleadings in his favor. In his third issue,
he challenges the court's failure to rule on motions,
such as his motion for a bench warrant and motions for phone
conferences. In his fourth issue, he argues that the trial
court erred by failing to file findings of fact and
conclusions of law. In his fifth issue, he asserts that the
court erred by dismissing his case without further
development of the facts. In his sixth and final issue, he
argues that the court committed harmful error by failing to
liberally construe his pro se pleadings. In addition,
throughout his brief, he maintains that he was wrongfully
adjudicated as the father of J.M.G. in his criminal trial,
and he suggests that A.M.G. suffered a miscarriage and J.M.G.
does not exist.
review a trial court's order dismissing a case with
prejudice for an abuse of discretion. See Jackson v. N.
Forest Indep. Sch. Dist., No. 01-10-00010-CV, 2012 WL
246052, at *3 (Tex. App.-Houston [1st Dist.] Jan. 26, 2012,
"A court abuses its discretion if it acts without
reference to any guiding rules and principles such that the
ruling is arbitrary or unreasonable." Pressley v.
Casar, 567 S.W.3d 327, 333 (Tex. 2019) (per curiam);
see Walker v. Packer, 827 S.W.2d 833, 839 (Tex.
1992). "We must uphold a correct lower court judgment on
any legal theory before it, even if the court gives an
incorrect reason for its judgment." Guar. Cty. Mut.
Ins. Co. v. Reyna, 709 S.W.2d 647, 648 (Tex. 1986). We
will not reverse a judgment on appeal unless we conclude that
the trial court's error "probably caused the
rendition of an improper judgment" or "probably
prevented the appellant from properly presenting the case to
the court of appeals." Tex.R.App.P. 44.1(a).
court may dismiss an action, before or after service of
process, if the court determines that the action is frivolous
or malicious. Tex. Civ. Prac. & Rem. Code §
13.001(a)(2). A claim may be frivolous or malicious when its
"realistic chance of ultimate success is slight,"
when it has "no arguable basis in law or fact," or
when the party "cannot prove a set of facts in support
of the claim." Id. § 13.001(b).
filed suit to deny paternity of J.M.G. under section 160.303
of the Texas Family Code, which provides that a
"presumed father of a child may sign a denial of his
paternity." Tex. Fam. Code § 160.303. The Family
Code defines a "presumed father" as "a man
who, by operation of law under Section 160.204, is recognized
as the father of a child until that status is rebutted or