Opinion

JUSTICE O'CONNOR, with whom THE CHIEF JUSTICE, JUSTICE BRENNAN, and JUSTICE BLACKMUN join, and with whom JUSTICE POWELL joins as to Part I, concurring.

Today, this Court holds that a Texas statute prescribing a one-year statute of limitation for paternity suits violates the Equal Protection Clause of the Fourteenth Amendment. Although I agree with the Court's analysis and result, I write separately because I fear that the opinion may be misinterpreted as approving the 4-year statute of limitation now used in Texas. See Tex.Fam.Code Ann. § 13.01 (Supp.1982).

I

As the Court notes, the response of the Texas Legislature to our opinion in Gomez v. Perez, 409 U. S. 535 (1973), was "less than generous." Ante at 456 U. S. 94. The one-year statute of limitation for paternity suits, enacted following our decision in Gomez, severely restricted the opportunity for illegitimate children to obtain financial support from their natural fathers, an opportunity not denied legitimate children. Although the need for proof of paternity distinguishes legitimate from illegitimate children in their claims for child support, the State's asserted justification is neither sufficiently weighty nor substantially related to the limitation to uphold the statute under the Fourteenth Amendment.

The appellee has set forth a number of "state interests" to justify the one-year statute of limitation, but the Court accepts only one of these as permissible -the interest in preventing the prosecution of stale or fraudulent claims. The Court holds today that this interest will justify only those statutes of limitation that "are sufficiently long to present a real threat of loss or diminution of evidence, or an increased vulnerability to fraudulent claims." Ante at 456 U. S. 99. The Court elaborates:

It requires little experience to appreciate the obstacles to such suits that confront unwed mothers during the child's first year. Financial difficulties caused by childbirth expenses or a birth-related loss of income, continuing affection for the child's father, a desire to avoid disapproval of family and community, or the emotional strain and confusion that often attend the birth of an illegitimate child all encumber a mother's filing of a paternity suit within 12 months of birth.

Ante at 100.

Certainly these circumstances demonstrate that the one-year period of limitation once provided by § 13.01 is not sufficiently long to permit either the child or the mother to assert a claim for child support; moreover, there is nothing to indicate that the period is substantially related to the asserted interest in preventing the prosecution of stale or fraudulent claims. However, it is not only birth-related circumstances that compel the conclusion that the statutory distinction in this case between legitimate and illegitimate children is unconstitutional. To begin with, the strength of the asserted state interest is undercut by the countervailing state interest in ensuring that genuine claims for child support are satisfied. The State's interest stems not only from a desire to see that "justice is done," but also from a desire to reduce the number of individuals forced to enter the welfare rolls. [ Footnote 2/1 ] By making it difficult for unwed mothers to obtain child support payments from the natural fathers of their illegitimate children, the one-year statute of limitation could only increase the burden on the state welfare system. Thus, while the State surely has an interest in preventing the prosecution of stale and fraudulent claims, at the same time, it has a strong interest, peculiar to the State itself, in ensuring that genuine claims for child support are not denied. [ Footnote 2/2 ]

It is also significant to the result today that a paternity suit is one of the few Texas causes of action not tolled during the minority of the plaintiff. [ Footnote 2/3 ] Of all the difficult proof problems that may arise in civil actions generally, paternity, an issue unique to illegitimate children, is singled out for special treatment. When this observation is coupled with the Texas Legislature's efforts to deny illegitimate children any significant opportunity to prove paternity, and thus obtain child support, it is fair to question whether the burden placed on illegitimates is designed to advance permissible state interests.

Finally, the practical obstacles to filing suit within one year of birth could as easily exist several years after the birth of the illegitimate child. For example, if, because of the continuing relationship between the natural father and the mother, the father has provided the child with financial support for several years, the mother understandably would be unlikely or even unwilling [ Footnote 2/4 ] to jeopardize her relationship with the child's father by filing a paternity suit in order to protect her child's right to financial support at some indeterminate future date. Alternatively, the child may have lived with the father alone or his relatives for a number of years, a situation that leaves the child obviously unable to sue his father to establish paternity. The risk that the child will find himself without financial support from his natural father seems as likely throughout his minority as during the first year of his life.

II

A review of the factors used in deciding that the one-year statute of limitation cannot withstand an equal protection challenge indicates that longer periods of limitation for paternity suits also may be unconstitutional. In short, there is nothing special about the first year following birth that compels the decision in this case. Because I do not read the Court's decision as prejudging the constitutionality of longer periods of limitation, I join it.

Notes

[ Footnote 2/1 ]

In holding that the general 4-year statute of limitation, which governed paternity suits for children born before enactment of § 13.01, would be tolled during the plaintiff's minority, the Texas Court of Civil Appeals wrote:

We agree with the Washington Supreme Court which held that '[t]he state has a compelling interest in assuring that the primary obligation for support of illegitimate children falls on both natural parents, rather than on the taxpayers of this state.'

State v. Wood, 89 Wash.2d 97, 569 P.2d 1148, 1151 (1977). Texas Dept. of Human Resources v. Delley, 581 S.W.2d 519, 522 (1979).

[ Footnote 2/2 ]

The State's concern about stale and fraudulent claims is substantially alleviated by recent scientific developments in blood testing dramatically reducing the possibility that a defendant will be falsely accused of being the illegitimate child's father. In Little v. Streater, 452 U. S. 1 (1981), this Court discussed a report by the American Bar Association and the American Medical Association indicating that a series of blood tests could provide over a 90% probability of negating a finding of paternity for erroneously accused men. See Miale, Jennings, Rettberg, Sell, & Krause, Joint AMA-ABA Guidelines: Present Status of Serologic Testing in Problems of Disputed Parentage, 10 Family L. Q. 247, 258 (1976). The Court concluded that the "effectiveness of the [tests] attests the probative value of blood test evidence in paternity cases." 452 U.S. at 452 U. S. 8. See also Terasaki, Resolution by HLA Testing of 1000 Paternity Cases Not Excluded by ABO Testing, 16 J. Family L. 543 (1978).

[ Footnote 2/3 ]

Most statutes of limitation in Texas are governed by Tex.Rev.Civ.Stat.Ann., Art. 5535 (Vernon 1982), which provides:

If a person entitled to bring any action mentioned in this subdivision of this title be at the time the cause of action accrues either a minor, a married person under twenty-one years of age, a person imprisoned or a person of unsound mind, the time of such disability shall not be deemed a portion of the time limited for the commencement of the action and such person shall have the same time after the removal of his disability that is allowed to others by the provisions of this title.

See Simpson v. City of Abilene, 388 S.W.2d 760 (Tex.Civ.App.1965) (holding the 2-year statute of limitation for bringing a negligence action tolled during the plaintiff's minority).

In Texas Dept. of Human Resources v. Hernandez, 595 S.W.2d 189, 192 (Tex.Civ.App.1980), the Texas Court of Civil Appeals expressly held that Tex.Fam.Code Ann. § 13.01 (Supp.1982) is not tolled on account of the plaintiff's minority on the ground that tolling the statute of limitation "would but constitute a disingenuous way of holding Section 13.01 unconstitutional." Moreover, according to the court, by incorporating the time limitation into the statute creating the substantive right, the "limitation qualifies the right, so that it becomes a part of the substantive law, rather than the procedural law." 595 S.W.2d at 193. Thus, as a matter of state law, the tolling provision in Tex.Rev.Civ.Stat.Ann., Art. 5535 (Vernon 1982) does not apply to § 13.01.

[ Footnote 2/4 ]

The unwillingness of the mother to file a paternity action on behalf of her child, which could stem from her relationship with the natural father or, as the Court points out, from the emotional strain of having an illegitimate child, or even from the desire to avoid community and family disapproval, may continue years after the child is born. The problem may be exacerbated if, as often happens, the mother herself is a minor. The possibility of this unwillingness to file suit underscores that the mother's and child's interests are not congruent, and illustrates the unreasonableness of the Texas statute of limitation.