author: DAVID PURYEAR, Justice.

text:
    Lydia WILLIAMS, Appellant, v. Jackie WILLIAMS and K. W., Appellees.
    No. 03-02-00723-CV.
    Court of Appeals of Texas, Austin.
    Jan. 8, 2004.

      Pamela E. George, Houston, for appellant.
    J. Paul Standefer, Bastrop, for ad litem K.W.
    Chris D. Dillon, William H. Jenkins, Bastrop, for Jackie Williams.
    Before Chief Justice LAW, Justices B.A. SMITH and PURYEAR.
   OPINION

DAVID PURYEAR, Justice.

Appellee Jackie Williams filed a petition to terminate the parent-child relationship between appellant Lydia Williams and her daughter, K.W. When Lydia failed to answer, the trial court granted a default judgment, terminating Lydia’s parental rights. Lydia timely filed a motion for new trial, which the trial court overruled. She now appeals. We hold that although the citation with which Lydia was served failed to include the name of the petitioner, Jackie Williams, the record reflects that Lydia was properly served. We further hold that the evidence is legally insufficient to support the trial court's judgment terminating Lydia’s parental rights. We therefore reverse the trial court’s judgment. In the interest of justice, however, we remand the cause to the trial court for further proceedings.

BACKGROUND

These facts are compiled from the parties’ briefs, their trial court pleadings, and the evidence from the motion for new trial hearing. This factual summary is included to provide a background for the discussion in this opinion but should not be construed as a conclusive finding of any fact for subsequent proceedings.

Lydia Williams is the natural mother of K.W., the child who is the subject of this appeal. Jackie is Lydia’s mother and the child’s grandmother. By an agreed order dated March 23, 2001, Jackie Williams was appointed sole managing conservator of K.W., and Lydia was appointed possessory conservator.

On June 6, 2002, Jackie filed a petition to terminate Lydia’s parental rights to K.W., alleging (1) that Lydia engaged in conduct or knowingly placed her child with persons who engaged in conduct that endangers the physical or emotional well being of the child, (2) that she failed to support the child in accordance with her ability during the period of one year ending within six months of the date of the filing of the petition, and (3) that termination was in KW.’s best interest. The petition also sought the termination of KW.’s father’s parental rights. Jackie requested in her petition that Thomas and Iris Cummins, prospective adoptive parents, be named KW.’s managing conservators.

Lydia failed to file an answer in response to the petition. Consequently, the trial court held a default judgment hearing on August 2, 2002 and signed an order terminating Lydia’s parental rights on August 13. On August 23, Lydia filed a pro se answer, and on September 12, she filed a motion for new trial. The trial court held a hearing on the motion for new trial, during which both Lydia and Jackie testified.

According to Lydia’s testimony, she and Jackie maintained a strained relationship, although they saw each other regularly when Lydia visited her daughter, K.W., and they spoke frequently. When Lydia was served with the petition to terminate her parental rights, she spoke to her mother, and based on their conversation, assumed that her mother was not pursuing the petition. Later, Lydia learned from her brother that her mother hired a new attorney and was indeed pressing forward with the termination. Lydia claims that she subsequently contacted a legal hotline and was told that she would be served anew because her mother had hired a different attorney. Based on this advice, Lydia failed to file an answer to the petition. Although Lydia spoke to her mother before the August 2 termination hearing, Jackie never informed Lydia of the hearing date. Thus, Lydia did not learn of the termination of her parental rights until after the trial court rendered its judgment. She then hired a lawyer and filed her motion for new trial. As for her meritorious defense, Lydia alleged that the allegations in Jackie’s petition were untrue and insufficient evidence exists to support them.

Following the presentation of evidence, the trial court overruled the motion for new trial. Lydia now appeals the trial court’s judgment, challenging the sufficiency of the evidence, contending the trial court erred in overruling her motion for new trial, and claiming the citation with which she was served was defective.

DISCUSSION

Introduction

The natural right that exists between parents and their children is of eon-stitutional dimensions. Stanley v. Illinois, 405 U.S. 645, 652, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972); Holick v. Smith, 685 S.W.2d 18, 20 (Tex.1985). The United States Supreme Court has characterized the right to raise one’s child as fundamental — a basic civil right far more precious than property rights. Stanley v. Illinois, 405 U.S. at 651, 92 S.Ct. 1208. Because the involuntary termination of parental rights is complete, final, and irrevocable, termination proceedings must be strictly scrutinized. Holick, 685 S.W.2d at 20.

Service of Citation

By her first issue, Lydia claims that the citation upon which the default judgment was based is defective, and thus, the judgment is void. She argues that (1) the citation failed to include the name of the petitioner, Jackie, and (2) it was not directed to a sheriff or constable.

Service of citation must be in strict compliance with the rules of civil procedure to establish jurisdiction over a defendant and support a default judgment. Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex.1990); Uvalde Country Club v. Martin Linen Supply Co., 690 S.W.2d 884, 885 (Tex.1985); Barker CATV Constr., Inc. v. Ampro, Inc., 989 S.W.2d 789, 792 (Tex.App.-Houston [1st Dist.] 1999, no pet.). If strict compliance is not shown, the service of process is invalid and of no effect. Uvalde Country Club, 690 S.W.2d at 885. We make no presumptions of valid issuance, service, or return of citation when examining a default judgment. Id.

To be valid, a citation must comply with twelve requirements. The citation must

(1) be styled “The State of Texas,”
(2) be signed by the clerk under seal of court,
(3) contain name and location of the court,
(4) show date of filing of the petition,
(5) show date of issuance of citation,
(6) show file number,
(7) show names of parties,
(8) be directed to the defendant,
(9) show the name and address of attorney for plaintiff,
(10) contain the time within which these rules require the defendant to file a written answer with the clerk who issued citation,
(11) contain address of the clerk, and
(12) notify the defendant that in case of failure of defendant to file an answer, judgment by default may be rendered for the relief demanded in the petition.

Tex.R. Civ. P. 99b.

In this case, the citation fails to include Jackie’s name but complies with rule 99 in all other respects. Instead of naming the parties, the citation includes the style of the case, which is “In the Interest of: [K.W.].” See Tex. Fam.Code Ann. § 102.008(a) (West 2002) (suit affecting parent child relationship must be styled, “In the interest of_, a child”). It also correctly identifies Lydia and includes the name and address of Jackie’s attorney. Jackie is named as the petitioner in the original petition to terminate the parent-child relationship, which was attached to the citation. Lydia does not claim on appeal that she was not properly identified on the citation. Nor does she claim that she was not served. Indeed, she filed an answer with the trial court, albeit after the court rendered judgment. Her complaint is that the citation did not include the name of Jackie, who was a party to the dispute, and therefore did not strictly comply with the rules of civil procedure.

We note that strict compliance with the rules does not require “obeisance to the minutest detail.” Ortiz v. Avante Villa at Corpus Christi, Inc., 926 S.W.2d 608, 613 (Tex.App.-Corpus Christi 1996, writ denied); Herbert v. Greater Gulf Coast Enters., Inc., 915 S.W.2d 866, 871 (Tex.App.-Houston [1st Dist.] 1995, no writ). As long as the record as a whole, including the petition, citation, and return, shows that the citation was served on the defendant in the suit, service of process will not be invalidated. Regalado v. State, 934 S.W.2d 852, 854 (Tex.App.-Corpus Christi 1996, no writ); Ortiz, 926 S.W.2d at 613; Payne & Keller Co. v. Word, 732 S.W.2d 38, 41 (Tex.App.-Houston [14th Dist.] 1987, writ ref d n.r.e.).

This case presents a unique issue. On one hand, the failure to include the name of a party, even if it is the name of the plaintiff and not the defendant, is not a minute detail. Cf. Ortiz, 926 S.W.2d at 613 (omission of accent mark and of corporate designation and substitution of symbol “@” for word “at” are defects that do not invalidate service); Cockrell v. Estevez, 737 S.W.2d 138, 140 (Tex.App.-San Antonio 1987, no writ) (misspelling of defendant’s name in citation did not invalidate service); Payne & Keller Co., 732 S.W.2d at 41 (judgment upheld where petition and citation reflected registered agent as “Philippe Petitfrere,” and return reflected “Philipee Petitfreere”). On the other hand, there was no confusion about whether the correct party was actually served. Compare Higginbotham v. General Life & Accident Ins. Co., 796 S.W.2d 695, 696-97 (Tex.1990) (although return did not recite method of service as required, record demonstrated strict compliance with valid method of service), Dezso v. Harwood, 926 S.W.2d 371, 374 (Tex.App.-Austin 1996, writ denied) (upholding default judgment even though wrong person was sued because record clearly showed proper defendant received service and knew she was intended defendant), and Cockrell, 737 S.W.2d at 140 (although defendant’s name was misspelled in citation and return, default judgment not void where defendant did not claim lack of service and was clearly not misled by spelling error), with Uvalde Country Club, 690 S.W.2d at 885 (holding that where return showed Henry Bunting was served and petition alleged Henry Bunting, Jr. was proper registered agent of defendant, record did not show that correct person was served), Hercules Concrete Pumping Serv., Inc. v. Bencon Mgmt. & Gen. Contracting Corp., 62 S.W.3d 308, 311 (Tex.App.-Houston [1st Dist.] 2001, pet. denied) (where return reflected service on “Hercules Concrete Pumping” instead of “Hercules Concrete Pumping Service, Inc.,” court held return failed to show service on proper defendant), P & H Transp., Inc. v. Robinson, 930 S.W.2d 857, 859-60 (Tex.App.-Houston [1st Dist.] 1996, writ denied) (reversing default judgment where evidence did not affirmatively show that person named in citation was person actually served), and Avila v. Avila, 843 S.W.2d 280, 282 (Tex.App.-El Paso 1992, no writ) (reversing default judgment where record failed to show that person served was person named in citation). Nor does Lydia claim confusion regarding who filed the suit.

Ultimately, although our jurisprudence requires strict adherence to the rules regarding service of citation, it does so to ensure that there is no question about whether the proper party has been served before a default judgment is rendered. Here, however, not only does the return reflect that Lydia was properly served, but Lydia admitted that she was properly served throughout her testimony during the motion for new trial hearing. She testified that she was served while she was in jail, that she carefully read all of “the papers” that were served on her in jail, and that she immediately contacted her father after she was served. Furthermore, when asked how she discovered the names of the prospective adoptive parents, she answered that their names were in “the papers I was served.” Finally, in her affidavit supporting her motion for new trial, Lydia averred that she was served while in jail, that her mother was the petitioner in the petition to terminate Lydia’s parental rights, and that she drafted a response to the petition two weeks after she was served, but did not mad it until after the default judgment was rendered. Not only did her testimony make clear that she was properly served, but she also knew who the petitioner was in this suit. In light of the fact that there is no dispute as to whether Lydia was properly served and that the record establishes that she was aware of who filed the suit, we hold that the trial court did not err in assuming personal jurisdiction over Lydia. See Higginbotham, 796 S.W.2d at 697 (evidence from motion for new trial hearing showed strict compliance with valid method of service); Cockrell, 737 S.W.2d at 140 (where defendant claimed neither lack of service nor that he was misled by misspelled name, record did not reflect invalid sendee).

Lydia also relies on rule of civil procedure 15 in support of her argument. That rule instructs that “process shall be directed to any sheriff or any constable within the State of Texas.” Tex.R. Civ. P. 15. Citing Barker CATV Construction, Inc. v. Ampro, Inc., 989 S.W.2d 789 (Tex.App.-Houston [1st Dist.] 1999, no pet.), Lydia argues that rule 15, when coupled with rule 99b, which addresses the issuance and form of citation, requires the citation be addressed to both the defendant and a constable or sheriff. We disagree.

Rule 15 instructs that all writs and process shall be directed to any sheriff or constable. Tex.R. Civ. P. 15. It does not address the form of the citation, however. Rule 99, on the other hand, specifies what the form of the citation shall include. It requires the citation be directed to the defendant, but says nothing about expressly addressing the citation to any sheriff or constable. Tex.R. Civ. P. 99.

In Ampro, the citation was addressed to both the defendant and “to any sheriff or constable or authorized person.” Ampro, 989 S.W.2d at 791. The court recited that “[flailure to direct citation to the defendant as required by the rules results in a void citation, ineffective service, and a void default judgment.” Id. at 792. In previous opinions, the court had held that citations that were directed to both the defendant and addressed to the sheriff or constable are confusing and do not strictly comply with the rules. Id. (citing Medeles v. Nunez, 923 S.W.2d 659 (Tex.App.-Houston [1st Dist.] 1996, writ denied); Faggett v. Hargrove, 921 S.W.2d 274 (Tex.App.-Houston [1st Dist.] 1995, no writ)). The court reconsidered those prior holdings and in harmonizing rules 15 and 99, determined that the rules do allow citations to be directed to both the defendant and the sheriff or constable. Id. at 792-93. The court, however, did not hold that the citation must be addressed to both. Like the Ampro court, we too hold that citations must be expressly directed to the defendant under rule 99 and may also be addressed to the sheriff or constable under rule 15, but failure to include the sheriff or constable on the form of the citation will not render it void. Because the citation in this case was directed to Lydia, the defendant, we hold that the citation was not void and overrule Lydia’s first issue.

Default Judgments

Before we review the sufficiency of the evidence, we must determine the effect of Lydia’s failure to file an answer with the trial court and her failure to appear at the termination hearing. Traditionally, no evidence is necessary to support a no-answer default judgment because the defendant’s failure to answer is taken as admitting the allegations of the petition. Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 83 (Tex.1992). Indeed, it is well established that a default judgment operates as an admission of the material facts alleged in the plaintiffs petition. Id.; Stoner v. Thompson, 578 S.W.2d 679, 684 (Tex.1979).

Termination proceedings, however, are special. A court’s primary consideration in cases involving parental rights is always the best interest of the child. See Tex. Fam.Code Ann. § 153.002 (West 2002); Wiley v. Spratlan, 529 S.W.2d 616, 617-18 (Tex.Civ.App.-Tyler 1975), rev’d on other grounds, 543 S.W.2d 349 (Tex.1976). Before determining the best interest of a child, the court should ensure that it is as well-informed as the circumstances allow. Such a determination is rarely well-informed without consideration of the evidence and the perspective of the parents. In re P.M.B., 2 S.W.3d 618, 624-25 (Tex.App.-Houston [14th Dist.] 1999, no pet.). Accordingly, the best interest of the child requires that issues be as fully developed as possible, and technical rules of pleading and practice are not of controlling importance. Lohmann v. Lohmann, 62 S.W.3d 875, 879 (Tex.App.-El Paso 2001, no pet.); Sexton v. Sexton, 737 S.W.2d 131, 133 (Tex.App.-San Antonio 1987, no writ); Little v. Little, 705 S.W.2d 153, 154 (Tex.App.-Dallas 1985, writ dism’d w.o.j.); Barrow v. Durham, 574 S.W.2d 857, 861 (Tex.Civ.App.-Corpus Christi 1978), aff'd, 600 S.W.2d 756 (Tex.1980). Pertinent facts that may affect the best interest of the child should be heard and considered by the trial court regardless of the lack of diligence of the parties in their presentation of information to the court. C— v. C—, 534 S.W.2d 359, 361 (Tex.Civ.App.-Dallas 1976, writ dism’d w.o.j.).

Moreover, because terminating the parent-child relationship is such a drastic measure, termination proceedings include many procedural safeguards not found in other civil trials. For example, termination hearings require clear and convincing evidence, a heightened burden of proof. See Tex. Fam.Code Ann. § 161.001 (West 2002); In re G.M., 596 S.W.2d 846, 847 (Tex.1980). They receive precedence over other civil trials and appeals. Tex. Fam. Code Ann. §§ 105.004, 109.002, 161.202 (West 2002). They allow for the appointment of counsel for the child and indigent parents. Id. §§ 107.011-.016 (West Supp. 2004). The trial court has only one year, plus one 180-day extension, within which to render a final order or dismiss the suit. Id. § 263.401 (West 2002).

In summary, the termination of parental rights is unlike a traditional civil case, involving only two competing interests, the plaintiffs and the defendant’s. The child’s interest must also be considered and indeed is of paramount importance. The traditional no-answer default judgment rule takes into consideration only the actions of the defaulting parent; it leaves no room for the trial court to consider the child’s best interest. Cf. Lowe v. Lowe, 971 S.W.2d 720, 725-27 (Tex.App.-Houston [14th Dist.] 1998, pet. denied) (criticizing the application of Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 133 S.W.2d 124 (1939) to suits affecting parent-child relationship). Thus, in light of the special characteristics of termination proceedings and the important interests they are designed to protect, we hold that the traditional rule — that evidence is unnecessary to support a default judgment because the failure to answer is taken as an admission of the allegations in the petition — does not apply to involuntary termination of parental rights proceedings.

As further support for our holding, we note that a petition for the termination of a parent-child relationship is “sufficient without the necessity of specifying the underlying facts if the petition alleges in the statutory language the ground for the termination and that termination is in the best interest of the child.” Tex. Fam.Code Ann. § 161.101 (West 2002). Thus, if we were to apply the traditional rule for no-answer default judgments, we would be compelled to hold that the allegations in a petition are legally sufficient to support a termination of parental rights where the respondent has failed to answer, even if there were no supporting facts alleged in the petition or developed at trial. Such a conclusion runs afoul of the oft-cited axiom that a court’s primary consideration in these cases is always the best interest of the child, for it cannot be said that the best interest of the child has been served when a court reaches its conclusion based on traditional rules of pleading and practice rather than on a comprehensive review of the available evidence.

Moreover, under the traditional no-answer default judgment rule, a parent’s failure to answer a petition to terminate her parental rights would be tantamount to a voluntary relinquishment of parental rights, as the parent would be deemed to have admitted the allegations in the petition, and the court could then terminate the parental rights based solely on the deemed admissions. Cf. id. § 161.001(1)(K); Vela v. Marywood, 17 S.W.3d 750, 758-59 (Tex.App.-Austin 2000, pet. denied) (holding that petitioner must prove by clear and convincing evidence that affidavit of relinquishment was executed as provided in section 161.103 and that termination is in child’s best interest). But even voluntary relinquishments of parental rights are subject to strict procedural requirements. For example, a petitioner must prove by clear and convincing evidence that an affidavit of voluntary relinquishment of parental rights was executed in accordance with section 161.103 of the family code; that statute requires, among other things, that the affidavit be witnessed by two credible persons and verified before a person authorized to take oaths. Tex. Fam.Code Ann. § 161.103(a)(2), (3) (West Supp.2004). Furthermore, unless the affidavit expressly states that it is irrevocable, a parent may revoke a relinquishment in accordance with specified procedures. Id. §§ 161.103(g), .1035 (West 2002 <& Supp. 2004). And finally, it is well-established that relinquishment affidavits must be executed voluntarily and knowingly. Marywood, 17 S.W.3d at 759. Indeed, an involuntarily executed affidavit is a complete defense to a termination suit or decree based solely upon a finding under section 161.001(1)(K) of the family code. Id. These requirements must be adhered to before a court may terminate a parent-child relationship based solely on an affidavit of relinquishment. Yet, if a default judgment is rendered, under the traditional rule, a parent has in effect relinquished her parental rights, without the procedural protections provided by statute and without the opportunity to revoke that relinquishment. Such a rule, in the context of termination of parental rights, is too harsh given the constitutional dimension of the rights that are affected in these cases.

Finally, the practical complications of requiring the presentation of evidence before a no-answer default judgment can be rendered in termination cases are slight compared to the interests that must be protected. We note that many well-established legal doctrines include exceptions based on the public policy of the State when a child’s best interest is at issue. In re K.C., 88 S.W.3d 277, 280 (Tex.App.-San Antonio 2002, pet. denied) (Hardberger, C. J., dissenting). In addition, requiring the presentation of evidence even though the opposing party has failed to respond is not a novel concept. Cf. Heine, 835 S.W.2d at 83 (holding that court rendering default judgment must hear evidence of unliqui-dated damages); Tex. Fam.Code Ann. § 6.701 (West 2002) (if respondent fails to answer in divorce suit, petition may not be taken as confessed); Considine v. Considine, 726 S.W.2d 253, 254 (Tex.App.-Austin 1987, no writ) (holding that allegations in motion to modify conservatorship and support may not be taken as confessed if respondent fails to answer); see also Klapprott v. United States, 335 U.S. 601, 612-13, 69 S.Ct. 384, 93 L.Ed. 266 (1949) (reversing default judgment in denaturalization proceeding because rendered without evidentiary hearing). In Considine, this Court reasoned that the policy considerations underlying section 6.701 of the family code, which requires the petitioner to prove the allegations in a petition for divorce even if the respondent has failed to answer, should also apply in proceedings to modify provisions in prior divorce judgments that appoint conservators and set child support. 726 S.W.2d at 254; see also Armstrong v. Armstrong, 601 S.W.2d 724, 726 (Tex.Civ.App.-Beaumont 1980, writ ref'd n.r.e.) (refusing to apply the traditional default judgment rule in reviewing modification of conservatorship). Similarly, we conclude that it cannot be in the child’s best interest to determine whether his relationship with his parent should be terminated based solely on the parent’s failure to file timely a response to the petition. We recognize that the parent’s failure to respond may affect the trial court’s consideration of the issues in the ease, but it should not form the sole basis for the trial court’s judgment.

We suspect that the facts presented in this case are anomalous and that this is a unique case. We note that the Department of Protective and Regulatory Services was not a party in this dispute, and no attorney ad litem was appointed to represent the parent. In addition, Lydia claims her failure to appear was due in part to bad legal advice and misrepresentations made to her by her mother, who initiated this action. Finally, although Lydia filed a motion for new trial after the court rendered its judgment, the court overruled the motion, thus denying Lydia the opportunity to present her perspective about the allegations made against her. Under these unusual circumstances, we would be remiss were we to rely only on the allegations in the petition as a basis for severing this parent-child relationship.

Legal Sufficiency Review

Because termination of parental rights is such a drastic remedy and is of such weight and gravity, due process requires the petitioner to justify termination by the heightened burden of proof of “clear and convincing evidence.” Tex. Fam.Code Ann. § 161.001; In re G.M., 596 S.W.2d at 846. “Clear and convincing evidence” means “the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established.” Tex. Fam.Code Ann. § 101.007 (West 2002); accord In re C.H., 89 S.W.3d 17, 19, 25 (Tex.2002); In re G.M., 596 S.W.2d at 847. This standard is an intermediate standard, falling between the preponderance standard of ordinary civil proceedings and the reasonable doubt standard of criminal proceedings. In re G.M., 596 S.W.2d at 847.

The heightened “clear and convincing evidence” burden of proof alters our appellate legal sufficiency standard of review. In re J.F.C., 96 S.W.3d 256, 256-66 (Tex.2002); In re C.H., 89 S.W.3d at 25. This is because our traditional no-evidence standard of review does not adequately protect the parents’ constitutional interests. In re J.F.C., 96 S.W.3d at 264-65. In conducting our legal sufficiency review in termination cases, we must review all the evidence in the light most favorable to the finding and the judgment to determine “whether the evidence is such that a fact-finder could reasonably form a firm belief or conviction” that the grounds for termination were proven. Id. at 265-66. In other words, we must assume that the fact finder resolved disputed facts in favor of its finding if a reasonable fact finder could do so. Id. at 266. We must also disregard all evidence that a reasonable fact finder could have disbelieved or found to have been incredible. Id. This does not mean that a court must disregard all evidence that does not support the finding, as this could skew the analysis of whether there is clear and convincing evidence. Id. We must consider undisputed evidence even if it does not support the finding. Id. Following this review, if we determine that no reasonable fact finder could form a firm belief or conviction that the matter that must be proven is true, then we must conclude that the evidence is legally insufficient and render judgment in favor of the parent. Id.

Termination of Parental Rights

A court may terminate parental rights if it finds that: (1) the parent has engaged in any of the specific conduct enumerated in the family code as grounds for termination, and (2) termination is in the best interest of the child. Tex. Fam. Code Ann. § 161.001; Richardson v. Green, 677 S.W.2d 497, 499 (Tex.1984). The fact finder must determine that clear and convincing evidence supports both elements; proof of one element does not relieve the burden of proving the other. Holley v. Adams, 544 S.W.2d 367, 370 (Tex.1976) (quoting Wiley v. Spratlan, 543 S.W.2d 349, 351 (Tex.1976)). The child’s best interest is not the sole goal of involuntary termination proceedings; termination “may not be based solely upon what the trial court determines to be the best interest of the child.” Id.

The trial court’s final order states that it found by clear and convincing evidence (1) that Lydia has engaged in conduct or knowingly placed the child with persons who engaged in conduct that endangers the physical or emotional well-being of the child, (2) that she failed to support the child in accordance with her ability during a period of one year ending within six months of the date of the filing of the petition, and (3) that termination of the parent-child relationship between Lydia and her child is in the best interest of the child.

Dangerous Conduct

Under section 161.001(1)(E), a parent’s rights may be terminated if it is established by clear and convincing evidence that the parent has “engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child.” Tex. Fam.Code Ann. § 161.001(1)(E). Under subsection (E), we look exclusively to the parents’ conduct, including actions, omissions, or the parents’ failure to act. In re D.M., 58 S.W.3d 801, 811 (Tex.App.-Fort Worth 2001, no pet.). Termination based on this subsection must be based on more than a single act or omission; a voluntary, deliberate, and conscious “course of conduct” that endangered the child’s physical and emotional well-being is required. Texas Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 534 (Tex.1987); In re D.M., 58 S.W.3d at 811. “Endanger” means to expose to loss or injury, to jeopardize. In re M.C., 917 S.W.2d 268, 270 (Tex.1996). The endangering acts need not have been directed at the child, or have caused an actual injury or threat of injury to the child to constitute conduct that endangers the child’s physical or emotional well-being. In re M.C., 917 S.W.2d 268, 269 (Tex.1996).

At the termination hearing, Jackie was the only witness who testified. She was asked by her attorney whether Lydia “engaged in conduct or knowingly placed the child with persons who engaged in conduct that endangers the physical and emotional well being of the child,” to which Jackie answered, ‘Tes.” The child’s attorney ad litem then cross-examined Jackie and asked for “some specifics about what Lydia has done to make you believe it’s best that her parental rights be terminated.” Jackie responded that Child Protective Services had previously investigated Lydia, and since then, Lydia “has not really made any changes in that area.” According to Jackie, Lydia “still doesn’t have a job. She has left them and she has another baby by another man that she’s lived with that I believe is involved in drugs, and she comes to visit [K.W.] on occasion, but she takes no responsibility to be her mother.” The ad litem further inquired whether the CPS investigation had to do with “an issue of physical neglect,” to which Jackie responded, “Yes. She left [K.W.] alone by herself,” when she was about six months old. This was the totality of the evidence adduced to support the allegation that Lydia engaged in conduct or placed her child with persons who engaged in conduct that endangered her daughter’s well being.

Viewing the testimony in the light most favorable to the judgment, as we must, we conclude that a fact finder could not reasonably have formed a firm belief or conviction that this ground for termination was proven. In attempting to support the conclusory statement that Lydia engaged in conduct or placed her child with someone who engaged in conduct that endangered her child, Jackie sparingly described events from the past that led to CPS’s involvement and Lydia’s current conservatorship status. Jackie’s testimony revealed about CPS’s prior involvement only that Lydia had at one time left her child alone when the child was six months old. The record also reveals, however, that following that incident (about which we know very little), CPS did not seek termination of Lydia’s parental rights, and indeed, was ultimately dismissed from the suit. Moreover, Lydia was named posses-sory conservator of her child. There is no evidence that any of Lydia’s conduct directly resulted in endangerment to the child’s physical or emotional well-being. Indeed, there is no evidence that the child’s physical or emotional well-being was ever endangered. In re D.T., 34 S.W.3d 625, 634 (Tex.App.-Fort Worth 2000, pet. denied) (holding there must be evidence of endangerment to child’s physical or emotional well-being as direct result of parent’s conduct). Additionally, termination under this subsection must be based on more than a single act or omission; evidence of a voluntary “course of conduct” is required. Id. This simply was not established here. Finally, Jackie's statement that she believes Lydia lives with a man who is involved in drugs is no more than a mere surmise or suspicion, which is not the same as evidence. See Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.1983). We therefore hold that there is no legally sufficient evidence to support the trial court’s finding that Lydia engaged in conduct or placed her child with others who engaged in conduct that endangered the child’s well-being.

Failure to Support

Under section 161.001(1)(F), the parent-child relationship may also be terminated if the court finds by clear and convincing evidence that the parent has failed to support the child in accordance with the parent’s ability during a period of one year ending within six months of the date of the filing of the petition. Tex. Fam.Code Ann. § 161.001(1)(F) (West 2002). With regard to this basis for termination, Jackie offered no evidence, other than to track the statutory language and assert that Lydia “failed to support the child in accordance with her ability, during the period of one year, ending within six months of the date of filing this petition.” We hold that no legally sufficient evidence exists to support the trial court’s finding that Lydia failed to support her child in accordance with her ability for a period of one year.

Best Interest of the Child

Although a strong presumption exists that the best interest of a child is served by keeping conservatorship in the natural parent, this presumption may be overcome by clear and convincing evidence of the parent’s present unfitness. In re D.M., 58 S.W.3d at 814. The supreme court has listed several factors to be considered by a court in determining whether this presumption has been rebutted: (1) the desires of the child, (2) the present and future physical and emotional needs of the child, (3) the present and future emotional and physical danger to the child, (4) the parental abilities of the person seeking custody, (5) programs available to assist those persons in promoting the child’s best interest, (6) plans for the child by those individuals or by the agency seeking custody, (7) the stability of the home or the proposed placement, (8) the acts or omissions of the parent that may indicate that the existing parent-child relationship is not appropriate, and (9) any excuse for the acts or omissions of the parent. Holley, 544 S.W.2d at 371-72. In addition, a fact finder may infer that past conduct endangering the well being of a child may recur in the future if the child is returned to the parent. In re D.L.N., 958 S.W.2d 934, 941 (Tex.App.-Waco 1997, pet. denied), disapproved on other grounds by In re J.F.C., 96 S.W.3d 256, and In re C.H., 89 S.W.3d 17.

Again, the only evidence Jackie provided regarding the child’s best interest was her own testimony that she believed termination of Lydia’s parental rights and adoption of the child by Thomas and Iris Cummins would be in the child’s best interest. No specifics were provided with regard to any of the enumerated factors listed above. And no evidence was adduced about the Cummins or their relationship with the child. We conclude that this testimony amounts to no evidence of the best interest of the child.

CONCLUSION

We conclude that although the citation failed to include Jackie’s name as the petitioner, the record reveals that Lydia was properly served. We therefore overrule Lydia’s first issue. Because we hold that the evidence is legally insufficient to support any of the bases relied on by the trial court in terminating Lydia’s parental rights, we sustain Lydia’s third and fourth issues. Generally, when a legal insufficiency point is sustained, the reviewing court renders judgment in favor of the party bringing the point of error. Heine, 835 S.W.2d at 86; Flores v. Brimex Ltd. P’ship, 5 S.W.3d 816, 821 (Tex.App.San Antonio 1999, no pet.). When the interests of justice require a new trial for further development of the facts, however, the case can be remanded. Tex.R.App. P. 43.3(b); Flores, 5 S.W.3d at 821. While we recognize the child’s interest in having a quick and final resolution of this ease and the need for stability in the child’s life, we believe that because this case presented us with an issue of first impression in Texas and because we have announced a new rule in addressing that issue, the interests of justice are better served by remanding this case for further proceedings. It is also in the child’s best interest for the trial court to fully develop the evidence and render a judgment following consideration of the evidence. Accordingly, we reverse the judgment of the trial court and remand this case for further proceedings consistent with this opinion.

      . Jackie Williams, maternal grandmother of K.W., is the only appellee who filed a brief with this Court.

      . The record does not reveal what circumstances precipitated the rendition of the agreed order. It appears, however, that Child Protective Services (CPS) was involved, as the order dismisses CPS from the suit.

      . This statement should not be construed to suggest that an attorney ad litem should be appointed to represent a parent whose parental rights are subject to termination without a showing of indigency. The record in this case does not reveal whether the issue of Lydia’s indigency was ever raised before the court. We merely observe that often, even if the parent is not present at trial, an attorney ad litem usually is, thereby appearing for the parent and protecting the parent's rights. In re K.C., 88 S.W.3d 277, 279 (Tex.App.-San Antonio 2002, pet. denied) (holding that because party's attorney appeared at trial, even though party did not, there was no default judgment; case was tried on the merits).

      . Because we are reversing based on Lydia's legal insufficiency point, we do not reach her complaint that the trial court erred in failing to grant her motion for new trial and express no opinion on this issue.

      . Because we are reversing for legally insufficient evidence, we do not reach Lydia's remaining issues. See Tex.R.App. P. 47.1 (opinion should be as brief as practicable and address every issue necessary to final disposition of appeal).


source: Caselaw Access Project

author: BEA ANN SMITH, Justice.

license: Public Domain

text:
    TEXAS PARKS & WILDLIFE DEPARTMENT, Appellant, v. Milburn DEARING; Kenneth Head; and Mike Warren, Individually, and on behalf of all others similarly situated, Appellees.
    No. 03-03-00131-CV.
    Court of Appeals of Texas, Austin.
    Jan. 8, 2004.
    Rehearing Overruled Feb. 5, 2004.

      Richard D. Naylor, Asst. Atty. Gen., Austin, for appellant.
    John W. Thomas, Brothers & Thomas, L.L.P., Austin, Fred C. Head, Athens, for appellees.

      Before Justices KIDD, B.A. SMITH and PATTERSON.
   OPINION

BEA ANN SMITH, Justice.

This is an interlocutory appeal from the denial of a plea to the jurisdiction and the certification of a class action asserting disparate-impact liability for age discrimination under the Texas Commission on Human Rights Act (the “Act”). See Tex. Lab.Code Ann. § 21.051 (West 1996). Ap-pellees Milburn Dearing, Kenneth Head, Mike Warren, and others (collectively Dearing) brought a class-action lawsuit against their employer, the Texas Parks and Wildlife Department, asserting breach of contract and age discrimination resulting from the Department’s reclassification of their game warden positions. The lawsuit sought a mandamus, damages, and declaratory and equitable relief. The Department filed a plea to the jurisdiction, asserting sovereign immunity and Dear-ing’s untimeliness and failure to exhaust administrative remedies. The district court granted the plea as to the contract, declaratory-judgment, and mandamus claims but denied it as to the age-discrimination claim. The district court also entered an order granting Dearing’s motion for class certification of the age-discrimination claim. The Department appeals the denial of its plea and the class-certification order. We affirm the district court’s denial of the Department’s plea to the jurisdiction on the issues of timeliness and exhaustion of administrative remedies. We reverse the order certifying the class because we conclude that the only cause of action for which it was certified — a disparate-impact theory of liability for age discrimination — is not available under the Act.

BACKGROUND

Milburn Dearing and his fellow employees are employed by the Department as game wardens. Prior to 1994, there were four rungs on the Department’s game-warden “career ladder” — Game Warden I through Game Warden IV. Game wardens advanced from one rung to the next every four years. The game warden advancements were based on years of service rather than a competitive, promotional process. Only the legislature could create an additional rung on the Department’s ladder. In 1994, there were over a hundred game wardens at level IV, all with sixteen or more years of service at the Department. In an effort to provide additional compensation to these veteran game wardens, the Department reclassified 131 Game Wardens TV to the position “Field Sergeant Game Warden.” The position of “sergeant” already existed at the Department; thus no legislative action was required for the reclassification. The Department created some additional duties for these newly classified sergeants, including the supervision of deer-decoy operations and training of new officers. In 1995, the legislature passed a pay-parity rider, which required that “[t]he Director of the Parks and Wildlife Department may not provide for the compensation of a state-commissioned peace officer at a rate less than the rate paid by any other state agency to a state-commissioned peace offi-eer performing similar duties.” See Act of May 25, 1995, 74th Leg., R.S., ch. 1063, 1995 Tex. Gen. Laws 5242, 5857 (effective Sept. 1, 1995). Several months after this bill was passed, the Department had done nothing to determine whether the Field Sergeant Game Wardens were being paid in parity with officers performing similar duties in other law enforcement agencies. After pressure from members of the legislature, the Department’s Executive Director, Andrew Sansom, appointed a committee to study the pay-parity issue. The committee returned a finding that the Field Sergeant Game Wardens were performing similar duties to sergeants in the Department of Public Safety (DPS) and that the game wardens should therefore be compensated the same as the DPS sergeants. The Field Sergeant Game Wardens were then given a raise in early 1996.

In 1997, the legislature added a fifth rung to the game warden ladder — Game Warden V- — and adopted Salary Schedule C, which designated that the Game Warden Y position be compensated at the C-6 pay level. See Act of May 29, 1997, 75th Leg., R.S., ch. 1452, 1997 Tex. Gen. Laws 5535, 6341 (effective Sept. 1, 1997). In the same bill, the legislature also provided that the adoption of Salary Schedule C could not result in a pay reduction for any classified employee, including game wardens. See id. at 6345 (the pay rider). As of the effective date of the 1997 bill, the Department reclassified the Field Sergeant Game Wardens to the newly authorized position of Game Warden V, because their duties matched the legislative description of Game Warden V. Moreover, as the only non-competitively acquired sergeant position in the Department, Field Sergeant Game Warden was therefore not a “true” sergeant position, but more appropriately another rung on the career ladder. However, because of the pay rider forbidding the reduction of any employee’s pay, the so-called “grandfathered” Game Wardens V continued to be paid at their previous salary (equivalent to the then C-7 salary).

The appropriations act of 1999 created salary increases for all peace-officer positions in Texas. See Act of Apr. 23, 1999, 76th Leg., R.S., ch. 1589, 1999 Tex. Gen. Laws 5446, 6262-6263 (effective Sept. 1, 1999). On September 1, 1999, the Department ceased classifying the grandfathered Game Wardens V at the C-7 level and reclassified all employees in that group at the C-6 level. As a result, the reclassified Sergeant Game Wardens, formerly paid at the C-7 level of $42,084, received a salary increase to $44,600 (the new C-6 pay) instead of $51,600 (the new C-7 pay). It is this reclassification, from the C-7 to the C-6 level, that Dearing asserts was unlawful age discrimination.

Milburn Dearing filed a complaint with the Texas Commission on Human Rights on February 22, 2000, alleging that reclassification of the grandfathered Game Wardens V from the C-7 to the C-6 pay level constituted age discrimination because it had a disproportionate impact on employees over the age of forty, because none of the other sergeant positions at the Department were reclassified. The complaint asserted a class-action claim. The Commission accepted Milburn Dearing’s complaint as timely; noted that the date of the discriminatory act was September 1, 1999; acknowledged that the complaint was a class-action claim; and issued Milburn Dearing a right-to-sue letter.

Dearing filed a class-action lawsuit in Travis County district court, alleging age discrimination and breach of contract, seeking a declaratory judgment that the Department violated the 1997 and 1999 appropriations acts, and seeking a mandamus to remedy the Department’s abuse in downgrading the grandfathered game wardens to pay level C-6. Dearing also filed a motion to certify the class, defined as “all Field Sergeant Game Wardens employed by the Texas Parks and Wildlife Department on September 1, 1999 who were reclassified from pay group C-7 to pay group C-6 and from Field Sergeant Game Warden to Game Warden V.”

The Department filed a plea to the jurisdiction, asserting that (1) the age-discrimination claim was barred because the complaint filed with the Commission was untimely, plaintiffs failed to exhaust administrative remedies, and the reclassification was legislatively mandated; (2) the breach-of-contract claim was barred due to sovereign immunity; (3) the mandamus claim could not stand because a mandamus is an extraordinary remedy to be used only when there is no other adequate remedy at law, and plaintiffs had asserted various other causes of action sufficiently adequate; and (4) the declaratory-judgment claim could not stand alone as a cause of action because the Texas Uniform Declaratory Judgments Act is merely a procedural device for deciding cases already within the court’s jurisdiction. The Department also filed a motion for summary judgment on four grounds: (1) Mil-burn Dearing did not file a timely complaint with the Commission; (2) Milburn Dearing did not file the lawsuit within the statute of limitations; (3) Milburn Dearing did not exhaust administrative remedies; and (4) the reclassification at issue was the result of a legislative mandate.

After a hearing, the district court granted the Department’s plea to the jurisdiction on the breach-of-contract, declaratory-judgment, and mandamus claims but denied it as to the age-discrimination claims. It denied the Department’s summary-judgment motion. The court also granted Dearing’s motion for class certification. The certification order decreed the trial plan for the case: “the issues remaining to be tried in this case are: (a) Plaintiffs’ disparate impact claims for age discrimination in violation of Tex. Labor Code Ann. § 21.051 [and defendants’ affirmative defenses].” The Department brought this interlocutory appeal, challenging the court’s order certifying the class and denial of its plea to the jurisdiction.

DISCUSSION

I. Plea to the jurisdiction

Standard of review

A plea to the jurisdiction challenges the trial court’s authority to determine the subject matter of a specific cause of action. Rylander v. Caldwell, 23 S.W.3d 132, 135 (Tex.App.-Austin 2000, no pet.). In order to prevail, the party asserting the plea to the jurisdiction must show that even if all the allegations in the plaintiffs pleadings are taken as true, there is an incurable jurisdictional defect apparent from the face of the pleadings, rendering it impossible for the plaintiffs petition to confer jurisdiction on the trial court. See id. Because subject-matter jurisdiction presents a question of law, we review the district court’s decision de novo. Id. In reviewing a trial court’s ruling on a plea to the jurisdiction, we do not look at the merits of the ease; rather, we “construe the pleadings in favor of the plaintiff,” look to the pleader’s intent, and accept the pleadings’ factual allegations as true. Id. “The truth of the plaintiffs allegations is at issue only if the defendant pleads and proves that the allegations were fraudulently made to confer jurisdiction on the court.” Id. Further, “a court deciding a plea to the jurisdiction is not required to look solely to the pleadings but may consider evidence and must do so when necessary to resolve the jurisdictional issues raised.” Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex.2000).

Timeliness of complaint

The Department argues that its plea to the jurisdiction should have been granted because Dearing did not timely file his administrative complaint with the Texas Commission on Human Rights, a prerequisite to suit. See Specialty Retailers, Inc. v. DeMoranville, 933 S.W.2d 490, 491-92 (Tex.1996). A complaint with the Commission must be filed no later than 180 days after the alleged unlawful employment practice occurred. Tex. Lab. Code Ann. § 21.202 (West 1996). A complaint filed with the Commission is mandatory and jurisdictional. Schroeder v. Texas Iron Works, Inc., 813 S.W.2d 483, 485-86 (Tex.1991). In other words, a person claiming that an employer has violated the Act must file a complaint with the Commission and otherwise exhaust administrative remedies before filing a civil action alleging violations of the Act. Id. at 488. The complaint filed with the Commission must be filed within 180 days after the “alleged unlawful employment practice occurred,” or the complainant’s claim is time-barred. DeMoranville, 933 S.W.2d at 491-92.

Here, the alleged unlawful practice was the reclassification of the game wardens from C-6 to C-7, which occurred on September 1, 1999 — the date on which the 1999 appropriations act took effect. Until that date, the Department did not have the authority to downgrade the grandfathered game wardens because such action would have resulted in a decrease in their pay, which was specifically prohibited in the 1997 appropriations act. See Act of May 29, 1997, 75th Leg., R.S., ch. 1452, 1997 Tex. Gen. Laws 5535, 634. Even though the Department may have made the decision to reclassify the wardens in early August 1999, as evidenced by an interoffice memorandum, it could not legally do so until the 1999 act became effective. Milburn Dearing’s complaint was filed on February 22, 2000 — within 180 days after the 1999 act’s effective date of September 1.

Nonetheless, the Department argues that Dearing’s complaint was untimely because the limitations period begins to run when the employee is informed of the allegedly discriminatory employment decision, not when that decision comes to fruition or when the consequences of the act became most painful. See id. at 492-93. The Department asserts that Dearing knew of the reclassification by at least August 10, 1999, when he attended a mandatory meeting of game wardens held in New Braunfels. At this meeting, according to evidence submitted by the Department, the topic of reclassification “was discussed,” and it was “made known to those in attendance” that the reclassification would become effective September 1,1999. Alternatively, the Department asserts that Dearing knew of the reclassification as early as either the 1997 legislation or the 1999 legislation. Each of the three dates the Department asserts began the running of the limitations period would push Dear-ing’s complaint out of the 180-day filing window and make it untimely. We disagree with the Department’s assertion.

The statute clearly hinges the running of the limitations period on the date of the “unlawful employment action.” See Tex. Lab.Code Ann. § 21.202. Although DeMo-mnville holds that the limitations period begins to run on the date the employee is informed, of the unlawful action, that case concerned an employer’s established company policy and unequivocal communication to the employee that the policy would be enforced as to her, rather than an employer’s decision to take a future action based on new legislation giving it authority for the first time to do so. See DeMoranville, 933 S.W.2d at 492-93 (holding that employee’s notification that she would be terminated if she did not return to work within one year of start of her medical leave began limitations period running, rather than date on which she was actually terminated). We find this distinction significant.

Furthermore, whether Dearing knew definitively of the reclassification prior to September 1 is a fact question. A trial court must accept the allegations in a plaintiffs pleadings as true, unless the defendant pleads and proves that they were fraudulently made to confer jurisdiction. Bland, 34 S.W.3d at 554. The only evidence in the record going to what Dearing knew prior to September 1 is slim and does not establish that Dearing knew of the reclassification at any time before it actually occurred, on September 1. We also conclude that it is unlikely any reasonable person in Dearing’s position would have known prior to September 1 of the reclassification. See Johnson & Johnson Med., Inc. v. Sanchez, 924 S.W.2d 925, 928 (Tex.1996) (in wrongful termination case, statute of limitations begins running when employee receives unequivocal notice of termination or when reasonable person should have known of his termination). Lastly, the Commission accepted Dearing’s complaint as timely and identified the date of discrimination as September 1, 1999. See Tex. Lab.Code Ann. § 21.202 (West 1996) (Commission must dismiss untimely complaint); Gorges Foodservice Inc. v. Huerta, 964 S.W.2d 656, 664 (Tex.App.Corpus Christi 1997, no writ) (jury could rationally infer from Commission’s issuance of right-to-sue letter that complaint was timely filed). We therefore hold that Dearing’s complaint was timely filed with the Commission and overrule the Department’s first issue.

Single-fíling rule

The Department next asserts that the district court erred in not granting its plea to the jurisdiction because none of the plaintiffs exhausted their administrative remedies prior to filing suit, depriving the district court of subject-matter jurisdiction. The Department argues that even if Milburn Dearing’s complaint with the Commission was timely filed, none of the other plaintiffs filed a complaint, and his complaint may not substitute for individual filings by each potential class member. Because we have concluded that Milburn Dearing’s complaint was timely filed, we proceed to a discussion of whether the other plaintiffs may “piggyback” on his complaint, under the so-called “single-filing rule.” See Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1223 (5th Cir.1995); Anson v. University of Tex. Health Sci. Ctr., 962 F.2d 539, 540-41 (5th Cir.1992).

Under federal law, the single-filing rule allows a plaintiff who has not filed a charge with the Equal Employment Opportunity Commission (EEOC) to piggyback on the EEOC complaint filed by another person who is similarly situated. Mooney, 54 F.3d at 1223. Two conditions must be met for one or more plaintiffs to join individual claims if the named plaintiff filed a timely administrative charge: the persons attempting to piggyback must be similarly situated to the person who actually filed the EEOC charge, and the charge must provide notice of the collective or class-wide nature of the charge. Id. Although no Texas court has had occasion to consider applying the single-filing rule to cases involving complaints filed with the Commission, “it is proper to look to interpretation of parallel federal laws” when interpreting the Act. Stinnett v. Williamson County Sheriff's Dep’t, 858 S.W.2d 573, 576 (Tex.App.-Austin 1993, writ denied); see also Austin State Hosp. v. Kitchen, 903 S.W.2d 83, 87-88 (Tex.App.-Austin 1995, no writ) (“Because the Act seeks to promote federal civil rights policy and because Texas has little case law interpreting the Act, this Court looks to analogous federal law when appropriate.”).

Section 21.201 of the Act provides support for the single-filing rule: “A person claiming to be aggrieved by an unlawful employment practice or the person’s agent may file a complaint with the commission.” Tex. Lab.Code Ann. § 21.201 (West 1996) (emphasis added). We hold that, under this statute, a person’s “agent” could reasonably include a class representative. The statute at issue in the federal cases provides that “[n]o civil action may be commenced by an individual under this section until 60 days after a charge alleging unlawful discrimination has been filed with the [EEOC]. Such a charge shall be filed ... within 300 days after the alleged unlawful practice occurred.” 29 U.S.C.A. § 626(d) (West 1999) (emphasis added); Anson, 962 F.2d at 541. The Texas statute, like the federal one, does not specifically include or exclude the single-filing rule. Because it is proper to look to interpretation of parallel federal laws, we adopt the single-filing rule fashioned by federal courts.

The policy behind the federal single-filing rule persuades us that it should apply to state complaints filed with the Commission:

[I]t would be wasteful, if not vain, for numerous employees, all with the same grievance, to have to process many identical complaints with the EEOC. As long as the EEOC and the company are aware of the nature and scope of the allegations, the purposes behind the filing requirement are satisfied and no injustice or contravention of congressional intent occurs by allowing piggybacking.

Mooney, 54 F.3d at 1223 (internal quotations and citations omitted). We find that the same policy applies to a class-action suit filed under the Act when the single, filed complaint adequately puts the investigative agency and employer on notice of the extent of the allegations. It would be wasteful of resources for each of numerous plaintiffs to file separate complaints when the grievances are the same and one complaint could serve the same purpose. Here, there is no dispute that Mil-burn Dearing’s complaint stated its intent to make the age-discrimination claim against the Department a class action. We hold that the single-filing rule applies to complaints filed with the Commission, that all members of the purported class are similarly situated, and that Dearing’s complaint adequately stated its class-action intent. We overrule the Department’s second issue.

In a third issue, the Department asserts that its actions in reclassifying the Sergeant Game Wardens were legislatively mandated and that the legislature’s actions were rationally related to a legitimate state interest, thus not subject to an attack based on age discrimination under Kimel v. Florida Bd. of Regents. See 528 U.S. 62, 83-84, 91, 120 S.Ct. 631, 145 L.Ed.2d 522 (2000) (noting that rational-basis review applies to age discrimination by states and holding that ADEA does not abrogate states’ sovereign immunity from suit by private individuals). However, the Department’s reliance on Kimel is misplaced because the Supreme Court explicitly noted that its holding did not foreclose plaintiffs’ ability to sue states under state age-discrimination statutes. Id. at 91-92, 120 S.Ct. 631. Furthermore, the Department has not pointed us to any legislative or statutory references from which we can conclude that its reclassification actions were required by law. We therefore overrule this issue.

II. Class Certification

Standard of review

A trial court’s decision to certify a class must be reviewed for an abuse of discretion, but a reviewing court must not indulge every presumption in favor of the trial court’s ruling. Henry Schein, Inc. v. Stromboe, 102 S.W.3d 675, 691 (Tex.2002). Although a trial court has discretion to rule on class-certification issues, and some of its determinations must be given the benefit of the doubt — like those based on its assessment of the credibility of witnesses, for example — the trial court’s exercise of discretion cannot be supported by every presumption that can be made in its favor. It is actual, not presumed, conformance with Rule 42 that must govern. Id. at 691; Southwestern Ref. Co., Inc. v. Bernal, 22 S.W.3d 425, 435 (Tex.2000); see Tex.R. Civ. P. 42.

Disparate impact

The trial court certified this class to bring an age-discrimination claim based on a disparate-impact theory of liability. The Department asserts that the class-certification order should be vacated because disparate-impact claims — the only cause of action for which the class was certified — are not viable under the Texas statute prohibiting age discrimination. In 1971, the United States Supreme Court held that disparate-impact claims may be brought under Title VII. Griggs v. Duke Power Co., 401 U.S. 424, 431, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971). Disparate-impact claims arise from “employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity.” Hazen Paper Co. v. Biggins, 507 U.S. 604, 609, 113 S.Ct. 1701, 123 L.Ed.2d 338 (1993) (quoting International Bhd. of Teamsters v. United States, 431 U.S. 324, 335-36 n. 15, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977)). Under a disparate-impact theory, liability may result even without an employer’s discriminatory motive; disparate-treatment claims, by contrast, require proof that age actually motivated the employer’s decision. Id. at 609-10, 113 S.Ct. 1701. Although Griggs made disparate-impact claims available under Title VII, the federal courts have struggled with the applicability of disparate-impact claims under the ADEA. Because the state statute directs us to follow judicial interpretation of the ADEA in determining the availability of a state disparate-impact theory, we must review this debate between the federal courts of appeal. But first we begin our discussion with a close examination of the Texas statute.

Dearing seeks to sue under section 21.051 of the Act. That section prohibits unlawful employment discrimination on the basis of race, color, disability, religion, sex, national origin, or age. See Tex. Lab.Code Ann. § 21.051. Section 21.122 of the act, which specifically addresses disparate-impact cases, reads:

(a) An unlawful employment practice based on disparate impact is established under this chapter only if:
(1) a complainant demonstrates that a respondent uses a particular employment practice that causes a disparate impact on the basis of race, color, sex, national origin, religion, or disability and the respondent fails to demonstrate that the challenged practice is job-related for the position in question and consistent with business necessity!.]
(b) To determine the availability of and burden of proof applicable to a disparate impact case involving age discrimination, the court shall apply the judicial interpretation of the Age Discrimination in Employment Act of 1967 [ADEA] and its subsequent amendments (29 U.S.C. Section 621 et seq.).

Id. § 21.122 (West 1996) (emphasis added). Subsection (a), which establishes disparate-impact claims, glaringly omits employment practices based on age discrimination. Subsection (b) addresses age discrimination separately and hinges the availability of a disparate-impact cause of action on judicial interpretation of the analogous federal act, the ADEA. The legislature specifically parsed disparate-impact cases into two categories: those involving age discrimination, addressed in subsection (b), and those involving any of the six other unlawful acts of discrimination, covered in subsection (a). Thus, we must review “judicial interpretation” of the ADEA to determine whether a disparate-impact claim involving age discrimination is available under the Act.

The United States Supreme Court has not directly ruled on the availability of a disparate-impact cause of action for age discrimination under the ADEA. In Hazen, the Court focused on legislative intent to prevent age discrimination based on inaccurate and damaging stereotypes and declined to address disparate-impact claims: “[W]e have never decided whether a disparate impact theory of liability is available under the ADEA and we need not do so here.” See Hazen, 507 U.S. at 609, 113 S.Ct. 1701 (citation omitted). Nevertheless, Hazen cast some doubt on the future of disparate-impact claims. The Court noted that “disparate treatment ... captures the essence of what Congress sought to prohibit in the ADEA.” Id. at 610, 113 S.Ct. 1701. The court continued, “[W]hen the employer’s decision is wholly motivated by factors other than age, the problem of inaccurate and stigmatizing stereotypes disappears. This is true even if the motivating factor is correlated with age, as pension status typically is.” Id. at 611, 113 S.Ct. 1701. Three concurring justices opined, “[T]here are substantial arguments that it is improper to carry over disparate impact analysis from Title VII to the ADEA.” Id. at 618, 113 S.Ct. 1701 (Kennedy, J., concurring). After Hazen, the United States Court of Appeals for the Seventh Circuit, which had originally recognized disparate-impact suits, reversed its position. E.E.O.C. v. Francis W. Parker Sch., 41 F.3d 1073, 1076-77 (7th Cir. 1994). Both the Third and Sixth Circuits have expressed considerable doubt as to whether a disparate-impact claim based on age discrimination survives after Hazen, but in neither opinion was the issue squarely before the court. See Lyon v. Ohio Educ. Ass’n, 53 F.3d 135, 139 n. 5 (6th Cir.1995); DiBiase v. SmithKline Beecham Corp., 48 F.3d 719, 732 (3d Cir.1995).

Those federal courts of appeal that have found disparate-impact claims available under the ADEA have based their determination on the similarity between the language in Title VII and the ADEA. See Criley v. Delta Air Lines, Inc., 119 F.3d 102, 105 (2d Cir.1997); Lewis v. Aerospace Cmty. Credit Union, 114 F.3d 745, 750 (8th Cir.1997); E.E.O.C. v. Local 350, 998 F.2d 641, 648 n. 1 (9th Cir.1993). However, the majority of federal appellate courts have relied on distinctions in both the language and the legislative intent behind Title VII and the ADEA to hold that the disparate-impact theory crafted in Griggs is not actionable under the ADEA. Mullin v. Raytheon Co., 164 F.3d 696, 700-01 (1st Cir.1999), cert. denied, 528 U.S. 811, 120 S.Ct. 44, 145 L.Ed.2d 40 (1999); Ellis v. United Airlines, Inc., 73 F.3d 999, 1006-07 (10th Cir.1996); Adams v. Florida Power Corp., 255 F.3d 1322, 1325-26 (11th Cir.2001).

The United States Court of Appeals for the Fifth Circuit has recently joined this majority in concluding that a disparate-impact theory of liability is not actionable under the ADEA in this circuit. See Smith v. City of Jackson, Miss., 351 F.3d 183, 196 (5th Cir., 2003). We proceed to a consideration of the reasoning behind the holding in Smith and the opinions that it follows.

Smith begins by noting the similarity between the ADEA and Title VII, the statute that gave rise to the disparate-impact theory of liability based on race-disparate impact, regardless of motive. Id. at 194. The language of the ADEA closely parallels that of Title VII, indeed “the prohibitions of the ADEA were derived in haec verba from Title VII.” Lorillard v. Pons, 434 U.S. 575, 584, 98 S.Ct. 866, 55 L.Ed.2d 40 (1978). It is this similarity that persuaded the Second, Eighth and Ninth Circuits to recognize disparate-impact claims under the ADEA. See Geller v. Markham, 635 F.2d 1027, 1031-32 (2d Cir.1980); Leftwich v. Harris-Stowe State Coll., 702 F.2d 686, 690 (8th Cir.1983); Douglas v. Anderson, 656 F.2d 528, 531 n. 1 (9th Cir.1981). However, Smith reaches a different conclusion by noting that the text of the ADEA differs from Title VII in an important respect: Section 623(f)(1) of the ADEA explicitly provides that an employer may “take any action otherwise prohibited ... where the differentiation is based on reasonable factors other than age.” See 29 U.S.C.A. § 623(f)(1) (West 1999); Smith, at 193-194. Neither this exception nor any parallel provision is found in Title VII. See Smith, at 193-194. As the Fifth Circuit recognized, this difference amounts to “a critical asymmetry” between the two statutes. Id.; see also Adams, 255 F.3d at 1325; Mullin, 164 F.3d at 701-02. When the “other reasonable factors” exception in the ADEA is read together with its general prohibition against age discrimination, the resulting construction follows: It is unlawful to “discriminate against any individual ... because of such individual’s age,” except when that employment action is “based on ... factors other than age.” Smith, at 190 (citing Mullin, 164 F.3d at 702). The general prohibition and exception, read together, allow for discrimination against the protected age group if the discrimination is based on some factor other than age. The Fifth Circuit reasoned that, if the ADEA exception is not understood to preclude disparate-impact liability, “it becomes nothing more than a bromide to the effect that ‘only age discrimination is age discrimination.’ ” Id. at 190 (quoting Mullin, 164 F.3d at 702). “Such a circular construction would fly in the teeth of the well-settled canon that ‘all words and provisions of statutes are intended to have meaning and are to be given effect.’ ” Mullin, 164 F.3d at 702 (citation omitted).

In support of this rationale, the Fifth Circuit notes the Supreme Court has held that a similar exception in the Equal Pay Act precludes disparate-impact claims under that act. See County of Washington v. Gunther, 452 U.S. 161, 169-71, 101 S.Ct. 2242, 68 L.Ed.2d 751 (1981). Section 206(d)(1) of the Equal Pay Act provides that wage discrimination on the basis of gender is prohibited, unless the wage “differential is based on any other factor other than sex.” See 29 U.S.C.A. § 206(d)(1) (West 1998). Each of the federal circuits that has disallowed disparate-impact claims under the ADEA has relied on Gunther’s interpretation of the similar “any other factor” exception in the Equal Pay Act to cast doubt on the availability of disparate-impact claims under the ADEA. See Smith, at 191-192; Adams, 255 F.3d at 1325; Ellis, 73 F.3d at 1008; Mullin, 164 F.3d at 702; Francis W. Parker Sch., 41 F.3d at 1077. Although the ADEA exception references “reasonable factors other than age,” while the Equal Pay Act omits the word reasonable, both the Fifth and Eleventh Circuits have found that the ADEA exception makes it more like the Equal Pay Act than Title VII, which has no such exception. See Smith, at 191-192; Adams, 255 F.3d at 1325 n. 6.

Secondly, Smith notes that the legislative history of the ADEA is different from that of Title VII. The ADEA was enacted after the Secretary of Labor issued a report on age discrimination recommending that Congress ban arbitrary discrimination, such as disparate treatment based on stereotypical perceptions of the elderly, but that factors affecting older workers, such as policies with disparate impact, be addressed in alternative ways. Smith, at 195; Mullin, 164 F.3d at 702-03; see U.S. Dep’t of Labor, The Older American Worker: Age Discrimination in Employment 2, 6, 21-25 (1965) (Congress should prohibit “arbitrary discrimination” based on age and age stereotypes, but factors that “affect older workers more strongly, as a group, than they do younger workers” should be addressed through programmatic measures to improve opportunities for older workers.). Title VII, on the other hand, had a broad remedial purpose: To “achieve equality of employment opportunities and remove barriers that have operated in the past to favor an identifiable group of white employees over other employees.” Griggs, 401 U.S. at 429-30, 91 S.Ct. 849, quoted in Smith, at 194-195; Adams, 255 F.3d at 1325-26 (“history of the ADEA differs from the legislative history of Title VII, which the Supreme Court in Griggs relied on to find a cause of action for disparate impact”); Ellis, 73 F.3d at 1008 (“legislative history of the ADEA suggests it was not enacted to address disparate impact claims”). “The cornerstone of Griggs’s holding that disparate impact is cognizable under Title VII is thus the link between the history of educational discrimination on the basis of race and the use of that discrimination to continue to disadvantage individuals on the basis of their race.” Smith, at 195 (citing Griggs, 401 U.S. at 432, 91 S.Ct. 849). “[Ajbsent from the scope of the ADEA are the historical and remedial concerns that, in the Title VII context, led to the recognition of disparate impact claims directed at overcoming the consequences of past societal discrimination.” Id.

This distinctive legislative intent to allow disparate-impact claims for Title VII discrimination but not necessarily for age discrimination is further revealed by comparing subsequent amendments to Title VII and the ADEA. Congress explicitly added a disparate-impact cause of action to Title VII in the 1991 Civil Rights Act. See Civil Rights Act of 1991, Pub.L. No. 102-166, 105 Stat. 1071, 1074-75 (1991) (codified at 42 U.S.C.A. § 2000e-2(k) (West 2003)) (hereinafter cited as Civil Rights Act of 1991); see Ellis, 73 F.3d at 1008; Mullin, 164 F.3d at 703. Although we can understand little of legislative intent from a body’s failure to act, Congress added no such parallel provision to the ADEA, despite its amendment of other portions of the ADEA. See, e.g., Civil Rights Act of 1991 at 115, 105 Stat. at 1079 (amending time period within which an employee may file civil actions); Civil Rights Act of 1991 at 302(2), 105 Stat. at 1088 (extending coverage of ADEA to congressional employees). While courts should ordinarily “tread slowly in premising statutory construction on the action (or inaction) of subsequent Congresses ... [,]what transpires in a later legislative session sometimes constitutes a useful source of guidance in statutory interpretation cases.” Mullin, 164 F.3d at 703 (citations omitted). Therefore, “Congresses] insertion of an express provision for a disparate impact cause of action in Title VII renders the absence of such a provision in the ADEA — which was undergoing revision at the same time by the same committees and in the same bill — highly significant.” Id.

Dealing insists that the reasoning of the Smith court is irrelevant because, unlike the federal scheme, the Texas legislature chose to prohibit age discrimination in the same statute that prohibits discrimination based on race, color, sex, national origin, religion, or disability, and thus disparate-impact claims should apply equally to all claims of discrimination. Dearing would have us ignore section 21.122, which states that disparate-impact claims are available for age discrimination in this state only if they are available under the ADEA. See Tex. Lab.Code Ann. § 21.122. Furthermore, the language in the Act— added in 1995 — mirrors the language added to Title VII in 1991 codifying disparate-impact cases under Title VII, except that the Texas Act treats disparate impact on the basis of age distinctly by removing it from the list of other forms of discrimination that give rise to disparate-impact liability. Compare Tex. Lab.Code Ann. § 21.122, with 42 U.S.C.A. § 2000e-2(k) (West 2003). We conclude, therefore, that the textual distinction between the ADEA and Title VII noted in Smith is specifically mirrored in the Act. Smith has declared that disparate-impact claims may not be redressed under the ADEA in this circuit. See Smith, at 195. We find the reasoning of the Fifth Circuit persuasive and hold that there is no disparate-impact theory of liability under the Texas Act.

The trial plan contained in the district court’s order certifying the class states that the plaintiffs’ disparate-impact claims for age discrimination and the defendants’ affirmative defenses to such claims are the only issues remaining to be tried in this class action. Because the only certified class-action claim may not be redressed under the Act, the certification order is therefore vacated, and the cause is remanded for further proceedings consistent with this opinion. See Warner-Lambert Co. v. Mills, 117 S.W.3d 488, 494 (Tex.App.-Beaumont 2003, no pet. h.) (holding that causes of action for which class was certified were preempted by federal law and thus court lacked subject-matter jurisdiction to certify class).

CONCLUSION

The district court’s denial of the Department’s plea to the jurisdiction was proper because Milburn Dearing’s complaint was timely filed with the Commission on Human Rights and, under the single-filing rule, met the filing requirements for the other class members. However, because the only cause of action for which the class was certified, a disparate-impact theory of liability, is not available under the Texas Commission on Human Rights Act, we reverse the class certification and remand the cause to the district court for further proceedings consistent with this opinion.

      . We will refer to Milburn Dearing by his full name when referring to him in his individual capacity.

      . There is evidence in the record to suggest that the Department’s reclassification of the 131 employees fulfilled a return promise made by the Department or its former Executive Director, Andrew Sansom, to the Texas Game Warden Association in exchange for the Association’s help with a legislative matter in 1993.

      . Section 21.101 of the Act provides that discrimination on the basis of age is prohibited against individuals age forty or older. See Tex. Lab.Code Ann. § 21.101 (West 1996).

      . The Department’s summary-judgment motion also asserted official immunity on the part of Andrew Sansom, the Department's Executive Director at the time of the relevant actions underlying the suit. The district court granted summary judgment in favor of the Department on this ground only.

      . Although only final judgments are typically appealable, certain interlocutory orders are appealable by statute, including orders certifying or refusing to certify a class and orders granting or denying a governmental unit's plea to the jurisdiction. See Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(3), (8) (West Supp.2004).

      . The Fifth Circuit did not accord much significance to the congressional inaction in adding a disparate-impact claim to the ADEA but merely noted in passing the distinction with Title VII. Smith v. City of Jackson, Miss., 351 F.3d 183, 187 n. 1, (5th Cir. Nov. 13, 2003).

      . Dearing argues that this Court is not bound by Fifth Circuit precedent on issues of federal law. See Penrod Drilling Corp. v. Williams, 868 S.W.2d 294, 296 (Tex.1993); Barstow v. State, 742 S.W.2d 495, 500-01 n. 2 (Tex.App.Austin 1987, writ denied). While we acknowledge the holdings of Penrod and Bar-stow, we find that the overwhelming majority of "judicial interpretation” of the ADEA is in accord with the decision reached in Smith.

      . Because we reverse the order certifying the class on jurisdictional grounds, we do not reach the Department's final issue of whether the plaintiffs have met the mimerosity, commonality, predominance, and superiority requirements of Rule 42. See Tex.R. Civ. P. 42.