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Banegas v. Holmquist
March 24, 1976
535 S.W.2d 410
Published Opinion

Banegas v. Holmquist

Court of Civil Appeals of Texas,

El Paso.

Linoa Carol BANEGAS, as next friend and guardian of the minor child, Cynthia Lynn Holmquist Cole, Appellant,


Oscar Burton HOLMQUIST, Jr., et al., Appellees.

No. 6462.


March 24, 1976.

Attorneys & Firms

*411 Stewart W. Forbes, Arthur A. Abraham, El Paso, for appellant.

Kerr, Fitz-Gerald & Kerr, Ted M. Kerr, Midland, Conway L. Wallace, Houston, for appellees.


PRESLAR, Chief Justice.

This is a dispute over Workmen’s Compensation death benefits between the parents of a deceased workman and a child of the workman, who had been adopted by someone else. The trial Court, on undisputed facts, rendered a summary judgment awarding the benefits to the parents of the deceased workman. We affirm.

Two questions are presented on appeal, the first being whether a child who has been adopted by another is entitled to death benefits of the child’s natural parent; the second is whether the denial of such benefits violated the equal protection clause of the Fourteenth Amendment to the United States Constitution.

Cynthia Lynn Holmquist Cole is the sole minor child of Ralph B. Holmquist who was killed in an industrial accident for which death benefits are payable under the Workmen’s Compensation Act, Art. 8306, Tex.Rev.Civ.Stat.Ann. Long before his death, he and Cynthia Lynn’s mother were divorced and the mother married one Clifton Cole, who adopted Cynthia Lynn. The Travelers Insurance Company, the Compensation carrier for Ralph Holmquist’s employer, has admitted that his death is compensable and has paid the benefits into court because of the conflicting claims of the minor, Cynthia Lynn Cole, and the parents, Oscar and Beulah Holmquist, Appellees herein.

As indicated, the trial Court determined that the parents of the deceased, instead of the natural child who had been adopted by another, were entitled to the death benefits. This precise question was decided by our Supreme Court in Art. 8306, s 8a.

Appellant urges that since the decision in Patton v. Shamburger in 1968, the adoption statutes have changed in that Texas has now enacted the Family Code. Zanella v. Superior Insurance Company, 443 S.W.2d 95 (Tex.Civ.App.—Eastland 1969, writ ref’d). Appellant’s first point of error is overruled.

Appellant’s second point of error is that the judgment of the District Court *412 operates as a taking of her property without due process of law and is contrary to the equal protection clause of the United States Constitution. In support of this position, Appellant cites 391 U.S. 68, 88 S.Ct. 1509, 20 L.Ed.2d 436 (1968). There is a distinction between the illegitimate child situation and that of the adopted child. The illegitimate child is deprived of any recovery from any source; he has no other place to turn for a recovery of benefits, while the adopted child simply changes parents; he loses the right to recover from his natural parent, but he is given the right to recover from the adoptive parent. Article 16.09 of the Family Code provides:

’(a) On entry of a decree of adoption, the parent-child relationship exists between the adopted child and the adoptive parents as if the child were born to the adoptive parents during marriage.’

The Supreme Court confirmed that in the Patton case, saying: ‘Our holding is that they are no longer ‘minor children’ of the natural father under the workmen’s compensation statute but are the minor children of the adoptive father and his wife, the natural mother of the children.’ Since Appellant is not deprived of a right but simply had that right transferred from one parent to another, we hold that there is no violation of the equal protection clause of the Fourteenth Amendment, United States Constitution.

The judgment of the trial Court is affirmed.

End of Document