author: DAVID R. FARMER, J.,

text:
    In the Matter of: B.A.C. (d/o/b 6/16/07), a Child Under Eighteen (18) Years of Age.
    Court of Appeals of Tennessee, at Jackson.
    Oct. 27, 2009 Session.
    Nov. 24, 2009.
    Application for Permission to Appeal Denied by Supreme Court Feb. 22, 2010.

      Charles L. Holliday, Jackson, Tennessee, for the Appellant.
    Robert E. Cooper, Jr., Attorney General and Reporter, Michael E. Moore, Solicitor General, and Douglas Earl Dimond, Senior Counsel, for the Appellee, State of Tennessee, Department of Children’s Services. Larris L. Karnes, Guardian Ad Litem.
   OPINION

DAVID R. FARMER, J.,

delivered the opinion of the court,

in which HOLLY M. KIRBY, J. and J. STEVEN STAFFORD, J., joined.

This appeal arises out of a termination of parental rights. The juvenile court terminated the parental rights of Rebecca Cornelius (“Mother”) on April 7, 2009, after finding grounds of severe child abuse and persistence of conditions. We affirm.

I. Background and Procedural History

Mother is a chronic substance abuser who has struggled with an' addiction to drugs for over twenty years. Mother started smoking marijuana at the age of nineteen, using daily for over ten years. Her drug use expanded to include other drugs such as cocaine and dilaudid at the age of twenty-eight. Dilaudid became Mother’s drug of choice, which she used on a regular basis for at least ten years. Like many substance abusers, Mother eventually incurred criminal charges as a result of her addiction. She pleaded guilty to charges of possession of a Schedule II controlled substance and possession of drug paraphernalia in 2003. She later attended court-ordered treatment after violating the terms of her probation. Mother’s efforts at recovery invariably failed. Mother completed treatment at several highly regarded facilities including Buffalo Valley, Teen Challenge, and the Tony Rice Center. Mother, however, admitted at trial that the longest period during which she remained free from drugs was two-and-a-half years.

Mother failed to remain drug free even after she learned she was pregnant. Mother’s extensive prenatal use of cocaine caused B.A.C., her only child, to begin life severely addicted to drugs. The Tennessee Department of Children’s Services (“DCS”) quickly intervened when it learned of B.A.C.’s condition. The resulting dependency and neglect petition was the subject of this Court’s recent decision in Cornelius v. State, Department of Children’s Services, 314 S.W.3d 902 (Tenn.Ct.App.2009), reh’g denied, No. W2008-02217-COA-R3-JV (Tenn.Ct.App. Aug.6, 2009), perm. app. denied (Tenn. Feb. 22, 2010).

The facts as presented in Cornelius were as follows:

On June 16, 2007, Appellant Rebecca Cornelius gave birth to [B.A.C.] At the time of his birth, [B.A.C.] tested positive for cocaine and methadone and was placed in the neonatal intensive care unit. Ms. Cornelius also tested positive for cocaine and benzodiazepines. The State of Tennessee Department of Children’s Services (“DCS,” or “Appellee”) was notified. While [B.A.C.] remained in intensive care, at a June 22, 2007 Family Team Meeting, Ms. Cornelius admitted to using cocaine every two to three weeks, and admitted to the use of illegal street drugs throughout the pregnancy. Ms. Cornelius stated that she was never told that using drugs would put her child’s health at risk, and specifically stated her belief that if she smoked crack cocaine instead of “straight lining” the drug, the unborn infant would not be harmed. [B.A.C.] remained in the Neonatal ICU for forty-six days after his birth. His attending physicians, Dr. Lisa Piercey and Dr. Scott O. Guthrie, testified that the drug levels in [B.A.C.’s] system were the highest levels they had seen in an infant, and that the child exhibited some of the most severe withdrawal symptoms they had seen in their careers....
... Adrian Shields, DCS Investigator, testified that, at her interview, Ms. Cornelius admitted to knowingly and willingly using cocaine every two to three weeks throughout her pregnancy. Ms. Cornelius also admitted to using methadone and Xanax during her pregnancy with [B.A.C.] In fact, Ms. Cornelius informed Ms. Shields that her drug cravings actually increased during the pregnancy. From the testimony, it appears that Ms. Cornelius’ [sic] has had a long history of drug abuse. Vonda Borden, a licensed professional counselor with Jackson Professional Associates (“JPA”) testified that Ms. Cornelius started methadone treatment at JPA in November 2006 and continued with that treatment until June 2007. Ms. Borden testified from her records that Ms. Cornelius had at least a ten year history of addiction, including pain killers, cocaine, and intravenous drugs. In fact, Ms. Cornelius failed twenty-five out of twenty-nine drug screens while in treatment. Ms. Borden testified that, on numerous occasions, she had informed Ms. Cornelius of the risk posed to her unborn baby by continued drug use.
Laura Shackelford, DCS Family Services Worker, testified that Ms. Cornelius and her attorney participated in the drafting of the initial permanency plan in this case, and that the goal established was reunification. To that end, Ms. Shackelford testified that she made referrals for parenting classes, alcohol and drug assessment, and random drug screens. The record indicates that, while [B.A.C.] remained in foster care, Ms. Cornelius tested positive on several drug tests. Specifically, Ms. Cornelius tested positive for cocaine on hair follicle drug screens dated October 31, 2007 and June 10, 2008. On March 18, 2008, Ms. Cornelius’ drug screen indicated positive for methamphetamine. Ms. Cornelius was also positive for cocaine on urine drug screens dated December 20, 2007 and January 25, 2008. She was positive for opiates on November 27, 2007 and December 20, 2007. A new permanency plan was developed on February 20, 2008, with the goal remaining reunification. Ms. Shackelford testified that Ms. Cornelius did not comply with this plan. Specifically, Ms. Cornelius missed visits with [B.A.C.] and refused to take drug screens on several occasions. Moreover, Ms. Cornelius has failed to provide documentation of AA attendance though DCS has requested same.
As noted above, [B.A.C.] was born addicted to cocaine. It is apparent from Dr. Scott Guthrie’s testimony that Ms. Cornelius’ drug use during the pregnancy caused this child severe pain during his withdrawal. Dr. Guthrie testified that [B.A.C.’s] symptoms included high-pitched crying, problems with feeding, loss of sleep, hyperactive reflexes, increased muscle tone, elevated temperature, nasal stuffiness, sneezing, nasal flaring, increased respiratory rate, increased sucking, regurgitation and loose stools. Dr. Guthrie testified that [B.A.C.’s] case was one of the more severe he had seen. According to Dr. Guthrie, [B.A.C.’s] neonatal abstinence scores were some of the highest scores he has ever seen, and these scores indicate that [B.A.C.] was “fairly dependent and getting a fairly high consistent dose of medication when he was inside the mother.” Dr. Guthrie testified that he is concerned about long-term neurode-velopmental problems with [B.A.C.], but that [B.A.C.] is not yet old enough to fully evaluate in this regard. The testimonies of other medical personnel who had contact with [B.A.C.] confirm Dr. Guthrie’s testimony that [B.A.C.’s] suffering was more pronounced than in most cases. Dr. Lisa Piercey, an expert in pediatrics and child abuse, also testified that [B.A.C.’s] case was one of the most severe she had seen. Dr. Piercey testified that she can, within a reasonable degree of medical certainty, associate Ms. Cornelius’ drug use with [B.A.C.’s] condition at birth. Her assessment was severe physical abuse secondary to drug exposure and drug endangered infant. She used the term “severe” meaning that [B.A.C.’s] situation was life-threatening.
Officer Alan Randolph of the Jackson, Tennessee police department testified that, on or about June 2, 2008, he responded to a shoplifting case at Lowe’s in Jackson. The alleged shoplifter was Ms. Cornelius. Officer Randolph testified that Ms. Cornelius was very forthcoming and voluntarily admitted that she had stolen $700 in tools from Lowe’s on that date. She advised that she had been dropped off at Lowe’s by two men (whom she refused to name) for the purpose and intent of shoplifting. According to Officer Randolph, Ms. Cornelius readily admitted that this was not an isolated event but that she “had been all over town” shoplifting. According to his report, Ms. Cornelius informed Officer Randolph that she had a long-term drug habit, that she needed to support it, that her drug of choice was methamphetamine, and that she was out of money. A burned spoon, two hypodermic needles, and two butane lighters were found in Ms. Cornelius’ purse. She acknowledged that these items were used in her drug practice. During her testimony, Ms. Cornelius admits to pleading guilty, on July 3, 2008, to theft of property under $500 and to possession of drug paraphernalia. She admits to a history of criminal activity that includes drug convictions, and violation of probation.

Cornelius, 314 S.W.3d at 904, 907-08. The juvenile court’s order on dependency and neglect found, in pertinent part, that Mother’s prenatal use of cocaine amounted to severe child abuse. Id. at 904. The circuit court reached the same conclusion in a de novo hearing, which this Court affirmed on appeal. Id. at 904, 910.

More recent testimony revealed that Mother’s drug use spiraled “out of control” after the juvenile court’s initial ruling in the dependency and neglect case. Francis Wicker (“Ms. Wicker”), a recovering alcoholic who served as one of Mother’s Alcoholics Anonymous (“AA”) sponsors, testified that Mother actively used cocaine, hydrocodone, dilaudid, and morphine during the summer of 2008. The serious nature of Mother’s drug addiction led her to sell and trade her prescription methadone to acquire other drugs. Mother’s desperation did not stop there. The evidence at trial showed she stole from local stores, sold her personal belongings, and sold items purchased with food stamps to support her drug habit. Ms. Wicker testified that Mother patronized a local drug dealer on an almost daily basis during June and July of 2008. In addition, Mother admitted that a car accident in July 2008 occurred during an attempt to procure morphine.

The juvenile court held its first hearing on DCS’ termination petition in August 2008 shortly after Mother’s drug use reached its most recent peak. Mother thereafter made verifiable progress towards addressing her addiction. Mother attended sixty-three AA meetings from July 2, 2008, until February 21, 2009. She completed a four-week intensive outpatient program through Pathways Behavioral Health Services (“Pathways”) on October 8, 2008, and began an aftercare program on December 17, 2008. Several favorable drug tests supported Mother’s claims of progress. Mother passed a urine screen on July 29, 2008. She tested negative for drugs in hair follicle tests conducted September 8, 2008, and December 10, 2008. Mother further testified that she passed every drug test her probation officer administered.

Doubt as to Mother’s recovery arose when she tested positive for opiates during a nail clippings test conducted December 2, 2008. Other questions remained as to Mother’s motivation. DCS suggested that Mother’s last-minute efforts resulted due to the stark possibility that she would lose her child and the virtual guarantee that she would serve jail time if she did not attempt to become drug free. Mother acknowledged that she would likely serve jail time if she violated the probation she received as a result of her theft from Lowe’s. She explained that testing positive for drugs could require her to serve two eleven month and twenty-nine day sentences, which the record shows would run consecutively.

The juvenile court remained unconvinced that Mother had effected a meaningful change in her life. The court terminated Mother’s parental rights after conducting hearings on August 13, 2008; October 14, 2008; December 16, 2008; and February 24, 2009. The court found grounds of severe child abuse and persistence of conditions, but declined to grant DCS’ petition on the ground of substantial noncompliance with the permanency plans. The court entered an order terminating Mother’s parental rights after concluding termination was in the best interests of B.A.C. Mother timely filed a notice of appeal.

II. Issues Presented

Mother presents the following issues for our review as restated:

(1) Whether this Court should overrule its prior decision affirming the finding of severe child abuse;
(2) Whether the juvenile court erred when it found clear and convincing evidence to support the ground persistence of conditions;
(3) Whether DCS clearly and convincingly proved that termination of Mother’s parental rights was in the best interests of the child.

III. Standard of Review

This Court reviews a trial court’s findings of fact de novo upon the record, according a presumption of correctness to the findings unless a preponderance of the evidence is to the contrary. Tenn. R.App. P. 13(d). This Court will not reevaluate the determinations of a trial court based on an assessment of credibility unless clear and convincing evidence is to the contrary. In re M.L.D., 182 S.W.3d 890, 894 (Tenn.Ct.App.2005) (citation omitted). This Court reviews the record de novo where the trial court has not made a specific finding of fact. In re Valentine, 79 S.W.3d 539, 546 (Tenn.2002). No presumption of correctness attaches to a trial court’s conclusions of law. Tenn. R.App. P. 13(d); Bowden v. Ward, 27 S.W.3d 913, 916 (Tenn.2000).

Tennessee Code Annotated section 36-1-113 governs the termination of parental rights. The Code provides, in pertinent part:

(c) Termination of parental or guardianship rights must be based upon:
(1) A finding by the court by clear and convincing evidence that the grounds for termination of parental or guardianship rights have been established; and
(2) That termination of the parent’s or guardian’s rights is in the best interests of the child.

Tenn.Code Ann. § 36-1-113(c)(1 )-(2) (2005 & Supp.2009). This two-step analysis requires courts to consider “whether the trial court’s findings, made under a clear and convincing standard, are supported by a preponderance of the evidence.” In re F.R.R., III, 193 S.W.3d 528, 530 (Tenn.2006). “Although the ‘clear and convincing evidence’ standard is more exacting than the ‘preponderance of the evidence’ standard, it does not require the certainty demanded by the ‘beyond a reasonable doubt’ standard.” In re M.A.B., No. W2007-00453-COA-R3-PT, 2007 WL 2353158, at *2 (Tenn.Ct.App. Aug.20, 2007)(no perm. app. filed). “Clear and convincing evidence is evidence that eliminates any substantial doubt and that produces in the fact-finder’s mind a firm conviction as to the truth.” Id. (citation omitted).

The clear and convincing standard is necessary because parents have a fundamental right to the care and custody of their children. Santosky v. Kramer, 455 U.S. 745, 768-69, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); In re Drinnon, 776 S.W.2d 96, 97 (Tenn.Ct.App.1988). “No civil action carries with it graver consequences than a petition to sever family ties indelibly and forever.” In re C.M.M., No. M2003-01122-COA-R3-PT, 2004 WL 438326, at *4 (Tenn.Ct.App. Mar.9, 2004) (no perm. app. filed). The termination of parental rights eliminates “all of the rights, responsibilities, and obligations of the parent[],” Tenn.Code Ann. § 36-1-113(d)(3)(C)(i) (2005 & Supp.2009), and removes a parent’s “right to object to the child’s adoption or thereafter, at any time, to have any relationship, legal or otherwise, with the child.” Tenn.Code Ann. § 36 — 1—113(d)(3)(C)(iii) (2005 & Supp. 2009). The heightened burden of proof in parental termination cases guards against unwarranted severance of the constitutionally protected parent-child relationship. In re M.W.A., Jr., 980 S.W.2d 620, 622 (Tenn.Ct.App.1998).

Additionally, “[t]he heightened burden of proof in parental termination cases requires us to distinguish between the trial court’s findings with respect to specific facts and the ‘combined weight of these facts.’” In re T.L.N., No. M2008-01151-COA-R3-PT, 2009 WL 152544, at *3 (Tenn.Ct.App. Jan.21, 2009) (no perm. app. filed) (citing In re M.J.B., 140 S.W.3d 643, 654 n. 35 (Tenn.Ct.App.2004)). “Although we presume the trial court’s specific findings of fact to be correct if they are supported by a preponderance of the evidence, ‘we are the ones who must then determine whether the combined weight of these facts provides clear and convincing evidence supporting the trial court’s ultimate factual conclusion.’ ” Id. (quoting In re M.J.B., 140 S.W.3d at 654 n. 35).

IV. Analysis

This Court will not reverse a termination decision for failure to establish grounds so long as a preponderance of the evidence clearly and convincingly demonstrates at least one of the statutorily provided grounds for termination. State, Dep’t of Children’s Servs. v. Mims, 285 S.W.3d 435, 449 (Tenn.Ct.App.2008) (citation omitted). The grounds before this Court are severe child abuse pursuant to Tennessee Code Annotated section 36-1-113(g)(4) and failure to remedy the conditions which led to the child’s removal pursuant to Tennessee Code Annotated section 36-1-113(g)(3).

A. Severe Child Abuse

Tennessee Code Annotated section 36-1-113(g)(4) establishes a ground for termination where a prior court order has found a parent to have committed severe child abuse. Tenn.Code Ann. § 36-l-113(g)(4) (2005 & Supp.2009). This Court in Cornelius affirmed a finding of severe child abuse based on Mother’s prenatal drug use. The Tennessee Supreme Court, as of the date of this opinion, has neither granted nor denied permission to appeal our decision in Cornelius. In the interim, we are content to rely on the reasoning set forth in Cornelius as well that of the recently authored opinion in In re Benjamin M., No. E2009-00209-COA-R3-JV, 2009 WL 3518165 (Tenn.Ct.App. Oct.30, 2009) (thoroughly addressing the question of whether prenatal drug use may constitute severe child abuse). Having reviewed the record, we hold that clear and convincing evidence supported the juvenile court’s decision on the ground of severe child abuse.

B. Persistence of Conditions

Tennessee Code Annotated section 36-l-113(g)(3) establishes a ground for termination where:

(3) The child has been removed from the home of the parent or guardian by order of a court for a period of six (6) months and:
(A) The conditions that led to the child’s removal or other conditions that in all reasonable probability would cause the child to be subjected to further abuse or neglect and that, therefore, prevent the child’s safe return to the care of the parent(s) or guardian(s), still persist;
(B) There is little likelihood that these conditions will be remedied at an early date so that the child can be safely returned to the parent(s) or guardian(s) in the near future; and
(C) The continuation of the parent or guardian and child relationship greatly diminishes the child’s chances of early integration into a safe, stable and permanent home[.]

Tenn.Code Ann. § 36-1-113(g)(3)(A)-(C) (2005 & Supp.2009). A finding on the ground of persistence of conditions is not appropriate unless DCS presents clear and convincing evidence to establish each statutory element. In re Giorgianna H., 205 S.W.3d 508, 518 (Tenn.Ct.App.2006) (citing In re Valentine, 79 S.W.3d 539, 550 (Tenn.2002)).

The conditions that led to the removal of B.A.C. were Mother’s failure to become drug free and her inability to understand the impact of her substance abuse on the child. The juvenile court found that these conditions persisted at the time of the termination hearing and would in all probability expose the child to further abuse and neglect. The court noted that at the time of the hearing Mother was illegally driving on a suspended license, was not consistently attending AA meetings, and was still doing drugs. The court concluded there was little likelihood that Mother would remedy these conditions at an early date. The continuation of the parent-child relationship would therefore greatly diminish B.A.C.’s chance of an early integration into a stable and permanent home.

We hold that clear and convincing evidence supported the juvenile court’s finding of persistent conditions. Mother continued to use drugs up to and possibly through the termination hearings. The positive drug tests of June 10, 2008, and December 2, 2008, are clear and convincing evidence of Mother’s continued drug use when considered in light of her arrest for shoplifting, Ms. Wicker’s testimony concerning Mother’s rampant drug use during July 2008, Mother’s admission that she intended to purchase morphine in July 2008, and additional testimony that Mother continued to associate with her drug dealer only a week before the final termination hearing in February 2009.

Considering the totality of the circumstances, Mother demonstrated little likelihood she would remedy her drug use at an early date. The juvenile court properly considered the continuing threat of relapse and Mother’s demonstrated failure to remain drug free in the past. See In re J.C.D., 254 S.W.3d 432, 443 (Tenn.Ct.App.2007). Timothy Butler (“Mr. Butler”), an alcohol and drug counselor at Pathways, testified that Mother’s efforts in the months preceding the final termination hearing showed she was likely in early partial remission. The court concluded that Mr. Butler’s testimony concerning early partial remission was “not close to good enough.” We agree with the juvenile court, further noting that Mr. Butler conceded that a positive drug test in December 2008 would alter his opinion about Mother’s recovery. We affirm the juvenile court’s finding of persistence of conditions.

C. Best Interests

The final consideration in the present case is whether termination of Mother’s parental rights is in the child’s best interests. Termination of a parent’s rights and responsibilities is appropriate only when clear and convincing evidence establishes that termination is in the best interests of a child. Tenn.Code Ann. § 36-1-113(c)(2) (2005 & Supp.2009). The General Assembly has established a non-exhaustive list of factors to consider when determining the best interests of a child:

(1) Whether the parent or guardian has made such an adjustment of circumstance, conduct, or conditions as to make it safe and in the child’s best interest to be in the home of the parent or guardian;
(2) Whether the parent or guardian has failed to effect a lasting adjustment after reasonable efforts by available social services agencies for such duration of time that lasting adjustment does not reasonably appear possible;
(3) Whether the parent or guardian has maintained regular visitation or other contact with the child;
(4) Whether a meaningful relationship has otherwise been established between the parent or guardian and the child;
(5) The effect a change of caretakers and physical environment is likely to have on the child’s emotional, psychological and medical condition;
(6) Whether the parent or guardian, or other person residing with the parent or guardian, has shown brutality, physical, sexual, emotional or psychological abuse, or neglect toward the child, or another child or adult in the family or household;
(7) Whether the physical environment of the parent’s or guardian’s home is healthy and safe, whether there is criminal activity in the home, or whether there is such use of alcohol or controlled substances as may render the parent or guardian consistently unable to care for the child in a safe and stable manner;
(8) Whether the parent’s or guardian’s mental and/or emotional status would be detrimental to the child or prevent the parent or guardian from effectively providing safe and stable care and supervision for the child; or
(9) Whether the parent or guardian has paid child support consistent with the child support guidelines promulgated by the department pursuant to § 36-5-101.

Tenn.Code Ann. § 36-l-113(i)(l)-(9) (2005 & Supp.2009). “Every factor need not be applicable in order for the trial court to determine that it is in the best interest of the child for a parent’s right[s] to be terminated.” In re D.C.A., No. M2008-01279-COA-R3-PT. 2009 WL 837877, at *8 (Tenn.Ct.App. Mar.30, 2009) (no perm, app. filed). The weight and relevance of these factors may vary from case to case and it is possible that a single factor is determinative. Id. (citing In re Audrey S., 182 S.W.3d 838, 878 (Tenn.Ct.App.2005)).

The juvenile court offered an lengthy list of reasons it believed termination was in the best interests of B.A.C. The court found that Mother failed to make an adjustment of circumstances, conduct, or conditions to make it safe for the child’s return and failed to effect a lasting adjustment after reasonable efforts by social services for such duration of time that lasting adjustment did not appear reasonably possible. The court additionally found that Mother remained unable to care for the child in a safe and stable manner, Mother exposed B.A.C. to harm after numerous warnings that drug use during her pregnancy could injure the child, and Mother continued to have contact with the same individuals she associated with during the period she admittedly used drugs. While not addressing the bond between Mother and child, the court found that B.A.C. established a strong bond with the foster parents, who wished to adopt the child.

Perhaps the most important findings related to the special needs of B.A.C. that have arisen due to Mother’s extensive prenatal drug use. The court’s order stated:

38. Since [B.A.C.] came into custody, he has received, and still receives, speech therapy, physical therapy, feeding therapy as well as services from TEIS (Tennessee Early Intervention Services) and from his foster parent who is a licensed respiratory therapist; supervised visitation with his mother; and other such services.
54. A change of caretaker and physical environment is likely to have a negative effect on the child’s emotional, psychological and/or medical condition. This child is very special needs and he may have significant deficits and require specialized life long attention. [Mother] has not acquired significant skills to work with this child.
65. The Court specifically finds by clear and convincing evidence that termination is in the best interest of the child as the child cannot go back and live with the mother today due to safety issues and due to the conditions and regimens that he needs.
66. The Court specifically finds by clear and convincing evidence it would not be in his best interest to be put in a situation where he would be at risk for removal again as any change is devastating to him.

The record, on the whole, strongly supports the juvenile court’s determination on best interests. Dr. Lisa Piercey explained that children in B.A.C.’s condition are “often very irritable and sometimes have difficulty controlling behavior.” The record is rife with testimony describing the special needs and unique behaviors of B.A.C. that have arisen due to his prenatal exposure to drugs. Because of Mother’s inability to remain drug free, B.A.C. is a developmentally delayed young child who demands constant structure in his life. Any variation in his daily routine can have a severe impact on B.A.C., both physically and emotionally. Unfortunately, the totality of B.A.C.’s special needs are still unknown. Cathi Kennedy (“Ms. Kennedy”), service coordinator for the Tennessee Early Intervention System, observed many “red flags” that could indicate undiagnosed developmental problems. For example, Ms. Kennedy observed eight characteristics of autism and sensory processing disorder in B.A.C.’s behavior. Ms. Kennedy unfortunately was not able to fully investigate these potential problems during her initial assessment, but was working to schedule an evaluation of B.A.C. at Vanderbilt. These facts combine to depict a highly rewarding, but highly stressful obligation to constantly care for the special needs of this child. The best interests of B.A.C. require a placement that can provide that special attention not for a day, week, or month, but for a minimum period of several uninterrupted years. Ms. Kennedy testified that B.A.C. “must, at this point, have a consistent routine and consistent schedule or he is not going to be able to learn to interpret his environment, and will continue to be delayed.”

From all accounts, the current foster family and potential adoptive placement has the skill and ability to care for B.A.C. The foster mother is a registered nurse and has already demonstrated an ability to keep B.A.C. on a strict schedule. Cha-nelle Alexander (“Ms. Alexander”), early intervention teacher with the Kiwanis Center, testified that there are no concerns as to the foster parents. After having the opportunity to observe the foster parents’ home, Ms. Alexander found no environmental concerns, no concerns with the interaction between parent and child, no concerns about B.A.C.’s safety, and no concerns about the foster mother’s commitment to caring for B.A.C.

There are, however, many concerns as to Mother’s ability to care for B.A.C. over time. One overriding concern is Mother’s inability to remain drug free. Mr. Butler explained that with Mother’s condition “[w]e’re talking about a chronic illness. We’re not talking about a cure, we’re talking about remission.” Continuing threats to Mother’s sobriety include withdrawal; stress; and people, places, and things from her the past. Mr. Butler testified that obtaining a sponsor is critical to functioning with potential aggravating factors. Despite her recent efforts at recovery, Mother has not abstained from associating with the people from her past, nor has she obtained a sponsor to help her struggle forward with a long recovery. These facts are highly disconcerting given the undeniable strain caring for B.A.C. would place on Mother’s daily life.

Caring for B.A.C. will be an arduous and difficult undertaking. Ms. Kennedy testified that children of B.A.C.’s nature can be significant financial and emotional stres-sors. Complications from Mother’s drug use will continue to affect his development as a young child. No one knows what additional difficulties he and his caretaker may encounter. We are not convinced that Mother is ready to bear this considerable burden. Laura Shackelford (“Ms. Shackelford”), Mother’s family services worker, testified that stress has caused Mother to use drugs before. Karen Broughton, a foster parent who has cared for many medically fragile children, stated that she did not believe Mother was physically or emotionally ready to care for B.A.C. These are glaring concerns given that even a single relapse is capable of setting off a chain of events that would severely and detrimentally affect B.A.C.’s development.

We acknowledge that not all factors run contrary to Mother’s position. Mr. Butler explained that loss of custody can be a motivating factor. Potential loss of custody and loss of freedom appear to have motivated Mother to make some belated progress towards reunification with B.A.C. Ms. Shackelford testified that there has been a change in Mother since the filing of the termination petition and since the initial court hearing in August 2008. Lena Bush with the Carl Perkins Center testified that Mother became more attached, more concerned, and more caring. Testimony at trial showed that Mother began to mature emotionally. She ultimately opened up to those offering services, actively participated in parenting classes, regularly attended visitation, and ostensibly established a bond with B.A.C.

We nonetheless conclude that clear and convincing evidence supported the juvenile court’s decision that termination was in the best interests of B.A.C. Mother’s failure to remain drug free during her pregnancy was not in the best interests of her child. Mother’s failure to remain drug free during these proceedings was again not in the best interests of her child. The possibility that Mother’s failure to remain drug free will once more delay B.A.C.’s development into a healthy and happy child is a possibility we are not willing to indulge. The General Assembly has provided that if “the best interests of the child and those of the adults are in conflict, such conflict shall always be resolved to favor the rights and the best interests of the child, which interests are hereby recognized as constitutionally protected and, to that end, this part shall be liberally construed.” Tenn.Code Ann. § 36-l-101(d) (2005). To the extent there is conflict here, we conclude that the best interests of B.A.C. weigh in favor of terminating Mother’s parental rights.

V. Conclusion

For the foregoing reasons, we affirm the juvenile court’s judgment terminating the parental rights of Mother. Costs of this appeal are assessed to the appellant, Rebecca Cornelius.

      . DCS also petitioned to terminate the parental rights of W J. and Unknown Father. The juvenile court granted a default judgment against WJ. and Unknown Father in a separate order entered April 7, 2009.

      . DCS filed a petition to terminate Mother’s parental rights on April 29, 2008.

      . Mother previously completed the same program in the fall of 2007, but relapsed after deciding not to enroll in the aftercare program.

      . The court’s order stated, "With respect to persistence of conditions, the question becomes, how many chances do you give a person? So many women beg for the opportunity to get into treatment for just 28 days and Ms. Cornelius had a year at Teen Challenge and received treatment at the Tony Rice Center."

      . Mother’s most recent sponsor, the aforementioned Ms. Wicker, quit associating with Mother in July 2008.

      . For example, there is a real possibility that B.A.C. may experience extreme discomfort while adjusting to changes in the barometric pressure. Karen Broughton explained that similarly situated children have cried for up to four days straight.

      . This is not the only indication that Mother has a history of using drugs to cope with life's difficulties. Mother candidly admitted at trial that she self-medicated her anxiety and depression for many years. Ms. Shackelford expressed concern that Mother would similarly turn to non-prescribed or illegal drugs to cope with persistent back pain, just one of Mother’s various physical ailments. Further, Mother suggested in her brief that she tested positive for drugs in June 2008 as a result of the filing of DCS’ termination petition: "Cer-. tainly, the filing of the Petition is not an excuse for Mother to relapse, but it may offer an explanation.” The possibility that Mother may have relapsed as an adverse reaction to a stressful situation is exactly the type of circumstance that causes this Court concern.


source: Caselaw Access Project

author: Chief Justice JEFFERSON

license: Public Domain

text:
    TEXAS DEPARTMENT OF CRIMINAL JUSTICE, Petitioner, v. Kirk Wayne McBRIDE, Sr., Respondent.
    No. 08-0832.
    Supreme Court of Texas.
    June 11, 2010.
    Kristofer S. Monson, Assistant Solicitor General, Austin TX, Attorney General Greg W. Abbott, Attorney General of Texas, Austin, TX, Kent C. Sullivan, Austin, TX, David S. Morales, Office of the Attorney General of Texas, Austin, TX, Julia Hamill Murray, Austin, TX, James C. Ho, Solicitor General of Texas, Austin, TX, Clarence Andrew Weber, First Assistant Attorney General, Austin, TX, for Petitioner.
    Kirk Wayne McBride Sr., Tennessee Colony, TX, pro se.
    Christy Lynn Martin, Manuel Lopez, Shook, Hardy & Bacon L.L.P., Houston, TX, for Respondent.
   Chief Justice JEFFERSON

delivered the opinion of the Court.

Kirk Wayne McBride, Sr. is an inmate at a Texas Department of Criminal Justice facility. Several years ago, the Department charged McBride with possession of an alcoholic beverage and entered findings against him in an administrative disciplinary hearing. McBride filed a Step 1 Grievance pursuant to the Department’s appeals process. McBride later learned that his Step 1 Grievance had been closed. He then initiated a new Step 1 Grievance, arguing that the Department never notified him of its decision in the first grievance, which prevented him from timely appealing it. The Department responded that the decision had been sent to McBride. McBride next filed a Step 2 Grievance, arguing that he was denied the right to challenge and exhaust his administrative remedies, and that the fifteen-day limitation period should begin anew from the date that he receives the original decision. Noting that McBride’s record revealed numerous grievances filed on a regular basis, the Department closed the case and took no further action.

McBride filed this lawsuit complaining, among other things, that the Department violated his due process rights by failing to give him a copy of the administrative decision. McBride sought a judgment declaring that the Department failed to comply with its own grievance procedures, and injunctive relief ordering the Department to provide him notice of its Step 1 decision so that he might proceed with his administrative remedies.

The Department denied McBride’s allegations, asserted sovereign immunity, and requested attorney’s fees. The trial court granted the Department’s plea and dismissed the case, but the court of appeals reversed, holding that “the Department’s claim for attorney’s fees is considered a claim for affirmative relief that waives sovereign immunity.” 317 S.W.3d 733. We disagree.

Sovereign immunity protects the State (and various divisions of state government) from lawsuits for money damages. Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 694 n. 3 (Tex.2003); Tex. Natural Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 853 (Tex.2002). In Reata Construction Corp. v. City of Dallas, 197 S.W.3d 371, 375 (Tex.2006), we recognized, however, that certain actions taken by governmental entities could affect their immunity: “[I]f the governmental entity interjects itself into or chooses to engage in litigation to assert affirmative claims for monetary damages, the entity will presumably have made a decision to expend resources to pay litigation costs.” In such cases, the governmental entity has decided to “leave its sphere of immunity from suit for claims against it which are germane to, connected with and properly defensive to claims the [governmental entity] asserts.” Reata, 197 S.W.3d at 377. Thus, we held that “[o]nce it asserts affirmative claims for monetary recovery, the [governmental entity] must participate in the litigation process as an ordinary litigant, save for the limitation that the [entity] continues to have immunity from affirmative damage claims against it for monetary relief exceeding amounts necessary to offset the [entity’s] claims.” Id.

Since Reata, several courts of appeals have examined whether a defendant-governmental entity’s request for attorney’s fees waives immunity. Most have held that it does not. See, e.g., Edwards Aquifer Auth. v. Horton, No. 04-09-00375-CV, 2010 WL 374551, at *2-*3, 2010 Tex.App. LEXIS 736, at ⅜6-*7 (Tex.App.-San Antonio Feb. 3, 2010, pet. denied) (“We join several of our sister courts ... in holding that the assertion of a claim for attorney’s fees in defending a lawsuit is not the assertion of a claim for monetary relief under the holding in Reata .... ”); City of Dallas v. VRC LLC, 260 S.W.3d 60, 64 (Tex.App.-Dallas 2008, no pet.) (holding that City’s request for attorney’s fees in defending a constitutional takings suit did not waive immunity under Reata); Lamesa Indep. Sch. Dist. v. Booe, 251 S.W.3d 831, 833 (Tex.App.-Eastland 2008, no pet.) (holding that school district’s request for attorney’s fees did not constitute waiver of immunity under Education Code, also relying on Reata); Harris County Toll Rd. Auth. v. Sw. Bell Tel., L.P., 263 S.W.3d 48, 65 (Tex.App.-Houston [1st Dist.] 2006) (holding that County did not waive immunity by seeking attorney’s fees in an inverse condemnation suit), aff'd on other grounds, 282 S.W.3d 59 (Tex.2009). But see Powell v. Tex. Dep’t of Criminal Justice, 251 S.W.3d 783, 791-92 (Tex.App.Corpus Christi 2008, pet. filed) (holding that the Department’s request for attorney’s fees waived immunity).

In this ease, McBride, not the Department, filed suit. In its answer, the Department denied McBride’s allegations and prayed for attorney’s fees and costs incurred in defending the case. Other than fees and costs, the Department asserted no claims for relief. Unlike Reata, in which the City injected itself into the litigation process and sought damages, the Department’s request for attorney’s fees was purely defensive in nature, unconnected to any claim for monetary relief. When that is the case, a request for attorney’s fees incurred in defending a claim does not waive immunity under Reata, and the court of appeals incorrectly held otherwise.

Without hearing oral argument, we reverse the court of appeals’ judgment and remand the case to that court for consideration of McBride’s remaining issues. Tex. R.App. P. 59.1, 60.2(d).

      . In light of its decision that the Department’s fee request waived immunity, the court of appeals did not reach McBride's arguments that his constitutional claims for declaratory and injunctive relief were not barred by immunity.


author: Chief Justice VALDEZ.

text:
    Kirk Wayne McBRIDE, Sr., Appellant, v. TEXAS DEPARTMENT OF CRIMINAL JUSTICE-CORRECTIONAL INSTITUTIONS DIVISION, Appellees.
    No. 13-06-00472-CV.
    Court of Appeals of Texas, Corpus Christi-Edinburg.
    July 31, 2008.
    Rehearing Overruled Sept. 4, 2008.
    Kirk Wayne McBride, Beeville, TX, pro se.
    Claire Raney, Asst. Atty. Gen., Julia Hamill Murray, Asst. Atty. Gen., Austin, TX, for Appellee.
    Before Chief Justice VALDEZ and Justices YÁÑEZ and BENAVIDES.
   MEMORANDUM OPINION

Memorandum Opinion by

Chief Justice VALDEZ.

Appellant Kirk Wayne McBride, Sr., an inmate proceeding pro se, filed suit against the Texas Department of Criminal Justice (“the Department”) because it allegedly violated his constitutional rights by not providing him notice of a grievance proceeding decision. The trial court dismissed McBride’s claims with prejudice for lack of jurisdiction. By a single issue, McBride contends the trial court erred in dismissing his claims. We reverse and remand.

I. Background

While an inmate at a Department facility, McBride was charged with possession of an alcoholic beverage, a facility infraction, and the Department entered findings against him in a disciplinary hearing. On September 14, 2004, McBride filed a “Step 1 Grievance” of the disciplinary hearing. The Department denied McBride’s grievance on September 29. McBride alleged that he did not receive notice of the Department’s decision on his Step 1 Grievance until October 21, 2004. After he received notice, McBride filed a “Step 2 Grievance.” In his Step 2 Grievance, McBride alleged that he did not receive notice of the Department’s decision in the Step 1 Grievance proceeding. The Department summarily denied McBride’s Step 2 Grievance, and it notified McBride that the file was closed.

On January 10, 2005, McBride filed suit against the Department. McBride claimed that the Department’s denial of his Step 2 Grievance without adequate notice was a denial of administrative and constitutional rights. He sought a judgment declaring that the Department had violated his constitutional rights by not providing him with notice of the decision in the Step 1 Grievance proceeding. McBride also sought an injunction to order the Department to provide him notice of the Step 1 Grievance proceeding so that he could proceed with his administrative remedies.

The Department filed an answer generally denying McBride’s allegations. Additionally, the Department asserted that: (1) the McBride’s claims were frivolous; (2) it enjoyed sovereign immunity from the suit; and (3) it was entitled to attorney’s fees. On February 15, 2006, the Department filed a plea to the jurisdiction. In its plea, the Department argued that the trial court lacked jurisdiction because McBride’s claims were barred by sovereign immunity. The Department further argued that the claims should be construed as a challenge to a disciplinary action, which can only be raised through a habeas corpus proceeding. McBride responded to the Department’s plea by arguing that it had waived immunity from suit by requesting attorney’s fees. A telephonic hearing was held on February 15, 2006. On July 28, 2006, the trial court granted the Department’s plea to the jurisdiction and signed an order dismissing McBride’s claims with prejudice. This interlocutory appeal ensued. See Tex. Civ. PRAC. & Rem.Code Ann. § 51.014(a)(2) (Vernon Supp. 2007).

II. Discussion

A plea to the jurisdiction seeks dismissal because the trial court lacks subject-matter jurisdiction to consider the cause. Harris County v. Sykes, 136 S.W.3d 635, 638 (Tex.2004). Whether a trial court has subject-matter jurisdiction is a question of law subject to de novo review. Hoff v. Nueces County, 153 S.W.3d 45, 48 (Tex.2004); Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.2004); Tex. Dep’t of Family & Protective Servs. v. Atwood, 176 S.W.3d 522, 527 (Tex.App.-Houston [1st Dist.] 2004, pet. denied). Ordinarily, if sovereign immunity is implicated, an inmate may not bring review of his TDCJ institutional disciplinary hearing before state district courts unless sovereign immunity is waived. State Dep’t of Crim. Justice v. Miller, 51 S.W.3d 583, 587 (Tex.2001).

On appeal, McBride argues that the trial court abused its discretion in dismissing his claims because the Department waived sovereign immunity by seeking affirmative relief in the form of attorney’s fees. We agree. In a similar case, we held that the Department’s claim for attorney’s fees is considered a claim for affirmative relief that waives sovereign immunity. Powell v. Tex. Dep’t of Crim. Justice, 251 S.W.3d 783, 790-91 (Tex.App.-Corpus Christi 2008, pet. filed). Under our holding in Powell, the Department has waived sovereign immunity in this case by seeking affirmative relief in the form of attorney’s fees. Id. McBride’s sole issue is sustained.

III. Conclusion

The dismissal order of the district court is REVERSED and the case is REMANDED for further proceedings consistent with this opinion.


author: G. ALAN WALDROP, Justice.

text:
    LAREDO COCA-COLA BOTTLING CO. and Coca-Cola Enterprises, Inc., Appellants, v. Susan COMBS, Comptroller of Public Accounts of the State of Texas; and Greg Abbott, Attorney General of the State of Texas, Appellees.
    No. 03-09-00157-CV.
    Court of Appeals of Texas, Austin.
    April 15, 2010.
    Rehearing Overruled July 9, 2010.

      Mark W. Eidman, Curtis J. Osterioh, Ray N. Donley, Scott, Douglass & McCon-nico, L.L.P., Austin, TX, for Appellants.
    Paul H. Masters, Assistant Attorney General, Austin, TX, for Appellees.
    Before Chief Justice JONES, Justices PEMBERTON and WALDROP.
   OPINION

G. ALAN WALDROP, Justice.

This is a suit for a tax refund. Appellants Laredo Coca-Cola Bottling Company and Coca-Cola Enterprises, Inc. purchased soda fountain equipment and then provided the equipment to businesses that used it to sell Coca-Cola drinks to customers. Appellants sued appellees Susan Combs, Comptroller of Public Accounts of the State of Texas, and Greg Abbott, Attorney General of the State of Texas (collectively, the “Comptroller”) to recover sales tax paid on appellants’ purchases of the equipment. The district court granted the Comptroller’s motion for summary judgment and entered a take nothing judgment in favor of the Comptroller on all of appellants’ claims. We hold that appellants’ purchases are not exempt from sales tax under former tax code section 151.318(g) (the manufacturing exemption), because appellants do not use the equipment for manufacturing, or under tax code section 151.302 (the sale-for-resale exemption), because appellants’ provision of the equipment to businesses was not done or performed for consideration as required by the tax code. We affirm the judgment of the district court.

Factual and Procedural Background

Appellants are distributors of Coca-Cola branded soft drinks. Appellants purchase concentrate from which they manufacture the finished drink to be placed in bottles or cans and then sold. Appellants also sell to retailers (such as bars and restaurants) the necessary elements for the soft drink to be sold as a fountain product — both the canisters of syrup and carbon dioxide that the fountain equipment mixes with water to produce the soft drink, and the cups, lids, and straws with which an individual drink may be sold. Some of these customers already possess the necessary fountain equipment. For those customers that do not, appellants provide the fountain equipment under one of two types of agreements: (1) a “lease” or “rental” agreement under which the customer makes monthly payments for the use of the equipment; or (2) a “commitment agreement” under which no payments are required, but the customer makes certain commitments.

The latter type of agreement — under which appellants provide fountain equipment free of charge — is at issue in this case. Appellants use various form agreements to document this type of agreement with their customers. Generally, the agreements require the customer to purchase a minimum amount of syrup, carbon dioxide, and cups from appellants, and to stock the equipment only with appellants’ products, to be distributed only in appellants’ cups. Both the equipment and the cups display the Coca-Cola trademark logo. The agreements provide that at all times, each appellant is to remain the “exclusive owner” of the equipment. The customer cannot remove Coca-Cola’s branding on the equipment, or move the equipment to a new location without appellants’ consent. The customer agrees to assume liability for any damage or loss to the equipment. Appellants provide any necessary repairs, for which the customer agrees to pay, although the customer usually is entitled to a number of free service calls. Upon entering into an agreement, appellants would deliver and install the equipment at the customer’s location. In the event that the customer failed to purchase the minimum amount agreed to, appellants would either commence charging monthly lease or rental payments or repossess the equipment, as authorized under the agreements. Appellants acknowledge that they do not recoup expenses associated with providing the equipment by charging higher prices for the syrup, carbon dioxide, or cups, or charging an amount for any other aspect of the transaction.

The Comptroller denied appellants’ refund claim for $750,632 in sales tax paid— attributable to the period from January 1, 1990, through June 30, 1996 — on their purchases of fountain equipment from the manufacturer of that equipment. See Tex. Tax Code Ann. § 111.104 (West 2008) (refund claims). The Comptroller also denied the motions for rehearing subsequently filed by appellants. See id. § 111.105(c), (d) (West 2008) (motions for rehearing).

On February 21, 2003, appellants filed suit in district court against the Comptroller, challenging the denial of their refund claims. See id. § 112.151 (West 2008) (suits for refund). Appellants rely on two tax exemptions: (1) the manufacturing exemption, see generally id. § 151.318 (West 2008); and (2) the sale-for-resale exemption, see generally id. § 151.302 (West 2008). The parties filed competing motions for summary judgment. On March 6, 2009, the district court granted the Comptroller’s motion for summary judgment, denied appellants’ motion for summary judgment, and entered a take nothing judgment in favor of the Comptroller on all of appellants’ claims. Appellants appeal.

Standard of Review

We review the district court’s summary judgment de novo. Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 156 (Tex.2004). Under the “traditional” standard, a summary judgment should be granted only when the movant establishes that there is no genuine issue as to any material fact and that it is entitled to judgment as a matter of law. See Tex.R. Civ. P. 166a(c); Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215-16 (Tex.2003). When, as here, both parties file motions for summary judgment and the court grants one and denies the other, we must decide all questions presented and render the judgment that the trial court should have rendered. City of Garland v. Dallas Morning News, 22 S.W.3d 351, 356 (Tex.2000).

Statutory exemptions from taxation are strictly construed because “they undermine equality and uniformity by placing a greater burden on some taxpaying businesses and individuals rather than placing the burden on all taxpayers equally.” North Alamo Water Supply Corp. v. Willacy County Appraisal Dist., 804 S.W.2d 894, 899 (Tex.1991). Consequently, the burden of proof for showing that the exemption applies is on the claimant. See id. The exemption must affirmatively appear in the statutory language, and all doubts are resolved in favor of the taxing authority and against the claimant. See Bullock v. National Bancshares Corp., 584 S.W.2d 268, 272 (Tex.1979). We also recognize that “the rule of strict construction cannot be used as an excuse to stray from reasonableness.” Sharp v. Tyler Pipe Indus., Inc., 919 S.W.2d 157, 161 (Tex.App-Austin 1996, writ denied).

Manufacturing Exemption

Appellants assert that some of their purchases of the fountain equipment are exempt from sales tax under the manufacturing exemption. During the audit period, section 151.318(g) of the tax code provided as follows:

Each person engaged in manufacturing, processing, fabricating, or repairing tangible personal property for ultimate sale is entitled to a refund or a reduction in the amount of tax imposed by this chapter as provided by Subsection (h) for the purchase of machinery, equipment, and replacement parts or accessories with a useful life in excess of six months if the equipment is used or consumed in or during the actual manufacturing, processing, fabrication, or repair of tangible personal property for ultimate sale, and the use or consumption of the property is necessary or essential to the manufacturing, processing, fabrication, or repair operation, or to a pollution control process.

Act of May 8, 1989, 71st Leg., R.S., ch. 154, § 1, 1989 Tex. Gen. Laws 532, 533, repealed by Act of May 31, 1999, 76th Leg., R.S., ch. 1467, § 4.01(3), 1999 Tex. Gen. Laws 4996, 5036. Appellants contend that this exemption applies to the fountain equipment because (1) the fountain equipment is “used ... in or during the actual manufacturing” of fountain drinks by appellants’ customers for ultimate sale, and (2) appellants are independently “engaged in manufacturing” by virtue of their bottling and canning activities.

The Comptroller contends that the manufacturing exemption does not apply to appellants’ purchase of the fountain equipment because appellants do not, themselves, use the equipment for manufacturing. The Comptroller has consistently maintained this interpretation. See Tex. Comptroller of Pub. Accounts, Hearing No. 29,774 (Oct. 12, 1994) (“The refund is available only to persons engaged in manufacturing with respect to equipment used by that person in actual manufacturing.”); see also Tex. Comptroller of Pub. Accounts, Hearing No. 39,695 (Dec. 30, 2002) (issue has been “conclusively decided”); Tex. Comptroller of Pub. Accounts, Hearing No. 31,922 (Dec. 19, 1996) (follows Hearing No. 29,774).

“Construction of a statute by the administrative agency charged with its enforcement is entitled to serious consideration, so long as the construction is reasonable and does not contradict the plain language of the statute.” Tarrant Appraisal Dist. v. Moore, 845 S.W.2d 820, 823 (Tex.1993). It is a reasonable construction of former section 151.318(g) that its tax exemption for items used in manufacturing applies only to the entity that, in fact, uses those items for manufacturing. Under appellants’ interpretation, they would get the tax benefits of a customer’s activities based on the happenstance of unrelated manufacturing activities that have nothing to do with the equipment at issue. Such a result runs contrary to the requirement that exemptions from taxation be strictly construed. See North Alamo Water Supply Corp., 804 S.W.2d at 899. It is a reasonable interpretation of the manufacturing exemption, then, that it applies to purchases by the entity that actually uses the purchased equipment for manufacturing.

We hold that former section 151.318(g) of the tax code (the manufacturing exemption) does not exempt from taxation appellants’ purchases of the fountain equipment at issue because the equipment is not used by appellants in manufacturing, processing, fabricating, or repairing tangible personal property.

Sale-for-Resale Exemption

Appellants also assert that some of their purchases of the fountain equipment are exempt from sales tax under the sale-for-resale exemption. A “sale for resale of a taxable item” is exempt from sales tax. See Tex. Tax Code Ann. § 151.302(a). Appellants rely on the following statutory definition of “sale for resale”:

“Sale for resale” means a sale of ... tangible personal property ... to a purchaser who acquires the property ... for the purpose of reselling it in the United States of America ... in the normal course of business in the form or condition in which it is acquired or as an attachment to or integral part of other tangible personal property....

Id. § 151.006(a)(1) (West 2008).

The Comptroller contends that appellants’ provision of the relevant fountain equipment to their customers does not qualify as a “sale” and, therefore, appellants’ acquisition of the equipment is not “for the purpose of reselling it.” To be a “sale” for purposes of the sale-for-resale exemption, the resale must — among other requirements — be “done or performed for consideration.” See id. § 151.005 (West 2008). Therefore, if appellants’ transferring of fountain equipment to their customers was done for no consideration, the sale-for-resale exemption does not apply to appellants’ purchase of that equipment.

Consideration can be either a benefit to the promisor or a loss or detriment to the promisee, and surrendering a legal right represents valid consideration. Northern Natural Gas Co. v. Conoco, Inc., 986 S.W.2d 603, 607 (Tex.1998). Moreover, it is not necessary that consideration be pecuniary. See Angelou v. African Overseas Union, 38 S.W.3d 269, 280 (Tex.App.-Houston [14th Dist.] 2000, no pet.). Appellants rely on three characteristics of their agreements with their customers to argue that the transfer of the equipment is done or performed for consideration.

First, appellants refer to the requirement that the customer use only the products purchased from appellants—syrup, carbon dioxide, and cups—in connection with the fountain equipment. However, we decline to consider this requirement to be a legal detriment to the customer or a surrender of a legal right because the agreements do not, in fact, prohibit the customer’s sale of any products not provided by appellants. The requirement only restricts what product can be used in connection with the equipment itself.

Next, appellants point to the requirement that the customer purchase a minimum amount of syrup, carbon dioxide, and cups from appellants. This requirement exists, under the applicable agreements, as the alternative to the customer’s obligation to make lease or rental payments. Appellants admit, however, that they did not charge any premium on those products for customers who receive the equipment absent any payment obligation. See Bullock v. Cordovan Corp., 697 S.W.2d 432, 435-36 (Tex.App.-Austin 1985, writ ref'd n.r.e.) (finding consideration for freely distributed magazines due to advertisers’ payment to claimant of “additional amount to have the magazines distributed to a certain group”); Tex. Comptroller of Pub. Accounts, Hearing No. 30,151 (Dec. 30, 1993) (finding consideration for free transfer of ovens because transferor received discount on services provided by transferee when using transferred ovens). During the time period in which the customer satisfies the minimum requirement, the only amounts paid to appellants are the amounts paid for the syrup, carbon dioxide, and cups sold, which amounts would be the same for a customer who paid for the equipment under a lease or rental agreement and made the exact same product sales. In the event the customer does not meet its required minimum purchase for the applicable time period, appellants acknowledge that their only response is either to repossess the equipment or to commence assessing lease or rental payments on a prospective basis. Thus, there is no evidence that a customer who fails to purchase the required minimum will be required to pay the amount by which the actual purchases fell below the minimum requirement. To the extent the minimum requirement in this case is actually a detriment to the customer, then, such a detriment relates only to the fountain products themselves, not the equipment.

The other contractual provision on which appellants rely is the customer’s agreement to assume liability for any damage or loss to the equipment while in the customer’s possession. Regardless whether such an assumption of liability might constitute consideration as a general matter, we decline to hold that, in these eir-cumstances, it constitutes consideration of a type such as would demonstrate a “resale” under tax code section 151.006(a)(1). The agreement by appellants’ customer to pay for any damage or loss to the equipment in its possession results in, at most, the mere possibility of a required payment. Moreover, there is no evidence in the record that appellants have ever enforced this contractual provision. Therefore, there is no evidence that such contractual requirement is, in fact, a detriment to the customer such that appellants’ provision of the equipment to their customers — and not appellants’ original purchase from the manufacturer — is the transaction that should be subject to sales tax. See National Bancshares Corp., 584 S.W.2d at 272 (for tax exemptions, all doubts resolved in favor of taxing authority and against claimant); DuPont Photomasks, Inc. v. Strayhorn, 219 S.W.Sd 414, 419 (Tex.App.-Austin 2006, pet. denied) (“The purpose of the sale-for-resale exemption is to prevent double taxation.”); cf.G & J Pepsi Cola Bottling, Inc. v. Limbach, 48 Ohio St.3d 31, 548 N.E.2d 936, 939 (1990) (finding assumption of liability for damage or loss to equipment to be consideration, under Ohio law, where record demonstrated retailers were charged for “damages to equipment caused by a car being driven into a machine and for damages to equipment caused by fire”).

We hold that the transactions at issue— involving appellants’ providing fountain equipment to customers free of charge as long as those customers otherwise meet minimum purchase requirements of sort drink products — is not a “sale” as contemplated by the “sale-for-resale” exemption of the tax code. Therefore, section 151.302(a) of the tax code (the sale-for-resale exemption) does not exempt from taxation appellants’ purchases of the equipment.

Conclusion

Based on the summary judgment record, appellants’ purchases of fountain equipment are not exempt from sales tax under former tax code section 151.318(g) (the manufacturing exemption) or tax code section 151.302 (the sale-for-resale exemption). We affirm the judgment of the district court.

      . Appellant Laredo Coca-Cola Bottling Company seeks a refund of $29,321 plus interest for the audit period May 1, 1993, through June 30, 1996, and relies exclusively on the manufacturing exemption. Appellant Coca-Cola Enterprises, Inc. is the successor in interest to Coca-Cola Bottling Company of Texarkana and Austin Coca-Cola Bottling Company. Coca-Cola Bottling Company of Texarkana sought a refund of $6,725 plus interest for the audit period October 1, 1991, through June 30, 1996, and relied exclusively on the manufacturing exemption. Austin Coca-Cola Bottling Company sought a refund of $193,770 plus interest for the audit period January 1, 1990, through December 31, 1992, based solely on the sale-for-resale exemption, and sought a refund of $520,816 plus interest for the audit period July 1, 1991, through June 30, 1996, based on both the manufacturing exemption and the sale-for-resale exemption.

      . Appellants contend that the party asserting lack of consideration has the burden of proof. However, the cases appellants cite involve a dispute between the parties to the alleged contract with regard to the validity of the contract in general, not a party to the contract seeking a tax exemption relating to a component of the contract. See ABB Kraftwerke Aktiengesellschaft v. Brownsville Barge & Crane, Inc., 115 S.W.3d 287, 293 (Tex.App.-Corpus Christi 2003, pet. denied); Rodriguez v. Southwestern Drug Corp., 619 S.W.2d 469, 472 (Tex.Civ.App.-Houston [14th Dist.] 1981, no writ). The burden of proof in a typical contract case does not alter the burden of proof where a claimant is seeking to come within an exemption to taxation.

      . Appellants cite Northern Natural Gas Co. v. Conoco, Inc., in which the supreme court held that the defendant's “promise to deliver for processing all gas that [the defendant] receives under the gas purchase contracts is the surrender of a legal right and therefore is sufficient consideration.” 986 S.W.2d 603, 607 (Tex.1998). However, in this case, the issue is not whether appellants' agreements, as a general matter, are supported by consideration. The issue is whether the transfer of the equipment itself is supported by consideration. Northern Natural Gas Co. does not alter our conclusion that it is not.

      . In some cases, the applicable agreement required the customer to obtain insurance against damage or loss to the fountain equipment. However, Steven McMahan, appellants’ designated corporate representative, admitted in his deposition that appellants did not obtain verification of insurance. Moreover, appellants provided no evidence regarding whether such a provision required the customer to purchase insurance in addition to its preexisting coverage.


text:
    STAR HOUSTON, INC., d/b/a Star Motor Cars, Appellant, v. Brett BRAY in his Official Capacity as Director of the Motor Vehicle Division of the Texas Department of Transportation; and Mercedes-Benz USA, LLC, Appellees.
    No. 03-09-00508-CV.
    Court of Appeals of Texas, Austin.
    April 28, 2010.
    Rehearing Overruled July 12, 2010.

      William David Coffey III, Martin Alaniz, Wm. David Coffey, II & Associates, Austin, TX, for Appellant.
    Linda B. Secord, Assistant Attorney General, Environmental Protection & Administrative Law Division, Tiffany Hil-dreth, Lloyd E. Ferguson, Strasburger & Price, L.L.P., Austin, TX, for Appellees.
    Before Chief Justice JONES, Justices PEMBERTON and WALDROP.
   OPINION

G. ALAN WALDROP, Justice.

The motor vehicle division of the Texas Department of Transportation (the “Division”) entered a final order in a contested case brought by appellant Star Houston, Inc., d/b/a Star Motor Cars (“Star”) against appellee Mercedes-Benz USA, LLC (“MBUSA”). Star filed a motion for rehearing with the Division. The Division denied Star’s motion for rehearing. Star filed a petition for judicial review in district court against MBUSA and appellee Brett Bray in his official capacity as director of the Division. However, Star’s petition was not filed within 30 days of the date on which the Division’s order denying Star’s motion for rehearing was rendered. As a result, the district court dismissed Star’s suit as untimely under the Administrative Procedure Act (the “APA”). Star argues that its petition was timely because it was filed within 30 days of the date on which Star received notice of the Division’s order. Alternatively, Star argues that the district court should have remanded the case to the Division to obtain new evidence regarding when the Division’s order was, in fact, rendered. We affirm the judgment of the district court.

Factual and Procedural Background

Star is a licensed, enfranchised dealer of new and used Mercedes-Benz motor vehicles in Houston, Texas. Star filed with the Division a series of complaints against its franchisor MBUSA regarding various franchise provisions Star contended were unlawful. The Division issued a final order in the agency proceeding on July 10, 2008. Star timely filed a motion for rehearing with the Division. The Division rendered an order — signed by Bray as director of the Division — denying Star’s motion for rehearing.

The order denying Star’s motion for rehearing was dated Friday, September 12, 2008. The order was faxed and mailed to Star the following Monday, September 15, 2008, along with a cover letter dated September 15, 2008. The cover letter stated that judicial review could be sought by filing in the district court “within thirty (30) days from the date the motion for rehearing was denied.”

Star filed a petition for judicial review of the Division’s final decision in district court on October 14, 2008. Appellees filed a plea to the jurisdiction on the basis that Star failed to file its petition for judicial review within the statutory time frame and, therefore, the district court did not have jurisdiction over Star’s lawsuit. On July 30, 2009, the district court granted appellees’ plea and dismissed the suit for lack of subject-matter jurisdiction.

Deadline for Filing under APA Section 2001.176(a)

The primary issue in this case is whether the APA’s 30-day deadline for filing a petition for review, where the agency renders an order denying a motion for rehearing, begins to run on the date the order was rendered or on the date the party seeking judicial review received notice of the order. In this case, if the 30-day period commences on the date the party receives notice, Star’s petition for judicial review was timely, but if the 30-day period commences on the date the order is rendered, Star’s petition was not timely and Star’s lawsuit was properly dismissed. See HCA Healthcare Corp. v. Texas Dep’t of Ins., 303 S.W.3d 345, 352 (Tex.App.-Austin 2009, no pet.) (30-day deadline is jurisdictional). We review issues of statutory construction de novo. See State v. Shumake, 199 S.W.3d 279, 284 (Tex.2006). We must adhere strictly to the rules as set out by the legislature. See Marble Falls Indep. Sch. Dist. v. Scott, 275 S.W.3d 558, 566 n. 4 (Tex.App.-Austin 2008, pet. denied).

The administrative hearing in this case was subject to chapter 2301 of the occupations code. See Tex. Occ.Code Ann. § 2301.703(a) (West 2004). The provisions of chapter 2301 make the APA applicable except in eases where the APA conflicts with chapter 2301. See id. §§ 2301.702, .751(c) (West 2004). Here, there is no dispute that the provisions of the APA relevant to the issue in this case do not conflict with chapter 2301. See, e.g., id. § 2301.713 (West 2004) (“A party who seeks a rehearing of an order shall seek the rehearing in accordance with Chapter 2001, Government Code.”).

Under the APA, a person who has exhausted the available administrative remedies and who is aggrieved by a final decision in a contested case is entitled to judicial review. See Tex. Gov’t Code Ann. § 2001.171 (West 2008). APA section 2001.176 requires that the petition for judicial review be filed not later than the 30th day after the date on which the administrative decision is “final and appealable.” See id. § 2001.176(a) (West 2008); see also Tex. Occ.Code Ann. § 2301.752(a) (West 2004) (“A petition for judicial review under this chapter must be filed not later than the 30th day after the date on which the action, ruling, order, or decision becomes final and appealable.”). Star filed its motion for rehearing on time, and the Division rendered an order denying Star’s motion for rehearing. Under APA section 2001.144(a)(2)(A), when the agency renders an order denying a timely-filed motion for rehearing, the date on which the contested case becomes “final” is not tied to the date of the initial order in response to which the motion for rehearing was filed, but is the date the order denying the motion for rehearing is rendered. See Tex. Gov’t Code Ann. § 2001.144(a)(2)(A) (West 2008). An order is “rendered” on the date it is signed. See Meador-Brady Mgmt. Corp. v. Texas Motor Vehicle Comm’n, 866 S.W.2d 593, 595 (Tex.1993); Young Chevrolet, Inc. v. Texas Motor Vehicle Bd., 974 S.W.2d 906, 910 (Tex.App.-Austin 1998, pet. denied). When the order denying the motion for rehearing is rendered, the agency’s decision is also “appealable.” See Tex. Gov’t Code Ann. § 2001.145(b) (West 2004). In sum, pursuant to the relevant statutes, the Division’s decision in the administrative proceeding was final and ap-pealable on September 12, 2008 — the date the order denying the motion for rehearing was rendered — and Star was required to file its petition for judicial review by October 13, 2008. Star’s petition was filed on October 14, 2008, and was, therefore, untimely.

Star contends that the 30-day deadline of section 2001.176 is subject to and modified by the notice provisions of APA section 2001.142. Section 2001.142(a) requires that parties in a contested case be notified either personally or by first class mail of any decision or order. See id. § 2001.142(a) ' (West 2008). Section 2001.142(b) provides as follows;

On issuance in a contested case of a decision that may become final under Section 2001.144 or an order ruling on a motion for rehearing, a state agency shall send a copy of the decision or order by first class mail to the attorneys of record and shall keep an appropriate record of the mailing.

Id. § 2001.142(b). Star contends that because notice is required for both a decision in a contested case (triggering, initially, the deadline for filing a motion for rehearing) and an order ruling on a motion for rehearing (triggering the deadline for filing a petition for judicial review), both notices should have identical impacts on the applicable deadlines — specifically, postponing the applicable deadlines until notice is received, actually or constructively.

Star’s statutory interpretation of section 2001.142, however, is not supported by the plain language of the applicable statutes. Section 2001.142 does not state that failure to comply with its notice requirement has any impact on the applicable statutory deadlines. As to the deadline for filing a motion for rehearing, APA section 2001.146 provides that the filing must be made not later than the 20th day after “the date on which the party or the party’s attorney of record is notified as required by Section 2001.142.” Id. § 2001.146(a) (West 2008). In contrast, section 2001.176 provides that the deadline for filing a petition for judicial review is the 30th day after “the date on which the decision that is the subject of complaint is final and appealable,” and section 2001.144 clarifies that “final and appealable,” under the facts of this case, occurred on the date on which the order denying the motion for rehearing was rendered. See id. §§ 2001.144(a)(2)(A), .176(a). The plain language of section 2001.142 does not establish or modify any filing deadlines. Rather, sections 2001.146 and 2001.176 establish the deadlines, and only section 2001.146 makes its deadline contingent on compliance with the notice requirement of section 2001.142. See Meritor Auto., Inc. v. Ruan Leasing Co., 44 S.W.3d 86, 90 (Tex.2001) (“Ordinarily when the Legislature has used a term in one section of a statute and excluded it in another, we will not imply the term where it has been excluded.”).

Star relies on the Texas Supreme Court’s opinion in Commercial Life Insurance Co. v. Texas State Board of Insurance, 774 S.W.2d 650 (Tex.1989). That ease involved an insurance company’s petition for judicial review of a state board’s administrative decision-under the statutory predecessor to the APA, the Administrative Procedure and Texas Register Act (“APTRA”)-denying the company’s application to change its name of operation in Texas. See 774 S.W.2d at 651. Similar to the current version of the APA, the AP-TRA required the board to notify the parties of its order in a contested case, and required the insurance company, as a prerequisite to judicial review, to file a motion for rehearing within 15 days after the date of the order’s rendition. See id. The state board in Commercial Life, however, did not give the insurance company any notice of its order. As a result, the company did not learn of the agency order until 17 days after its rendition, at which time the company immediately filed a motion for rehearing. The district court dismissed the insurance company’s suit for lack of jurisdiction. See id. However, the supreme court held that the motion for rehearing was timely. See id. at 652. The supreme court observed that the provision of notice served the “critical function” of informing the aggrieved party of the applicable time period for filing a motion for rehearing. The court further recognized that if the board’s failure to give notice did not toll the applicable deadline, the aggrieved party’s right to appeal could be precluded, and the court concluded that “the legislature could not have intended” such a result. See id. The supreme court held, therefore, that “the time period for filing a motion for rehearing does not commence until the agency complies with its statutory duty to notify the parties of the order or decision.” Id.

Star argues that the same approach should be followed here. As with the statutory framework at issue in Commercial Life, if the Division fails to give notice under APA section 2001.142 and such failure does not toll APA section 2001.176’s 30-day deadline, any right to appeal held by Star could be precluded. Thus, similar to the notice at issue in Commercial Life, the Division’s notice of its denial of Star’s motion for rehearing served the “critical function” of informing the aggrieved party of the applicable time period for filing a petition for judicial review. Therefore, Star contends, the time period for filing a petition for judicial review under section 2001.176 should not commence until the agency complies with its statutory duty to notify the parties of the order denying the motion for rehearing.

We do not believe the supreme court’s reasoning in Commercial Life applies in this case. The court limited its holding in Commercial Life to “the time period for filing a motion for rehearing.” See id. Moreover, in reaching its holding, the supreme court identified its responsibility to “construe” the applicable statutes, considered what the legislature must have intended, and was “mindful” of recent legislative amendments to the applicable statutes. See id. In other words, the supreme court began, as we must, with the statutory language. See Shumake, 199 S.W.3d at 284. We cannot extend Commercial Life’s holding to the time period under the APA for filing a petition for judicial review when the applicable statutes, here, plainly provide to the contrary. APA section 2001.146 expressly applies to the time period for filing a motion for rehearing, and expressly provides that the time period does not commence until notice is received (this is consistent with the holding in Commercial Life). See Tex. Gov’t Code Ann. § 2001.146(a). APA section 2001.176, on the other hand, expressly provides that the time period for filing a petition for judicial review commences when the order becomes “final and appealable.” See id. § 2001.176(a). This date, in a case such as this where the agency renders an order denying the motion for rehearing, is statutorily defined as the date the order denying the motion for rehearing is rendered. See id. § 2001.144(a)(2)(A). There is nothing in this statutory scheme tying this date to notice of the order on the motion for rehearing or even allowing a court to infer that notice is a prerequisite to the commencement of the 30-day period.

The supreme court did not hold in Commercial Life that, regardless of the applicable statutory language, any agency order or decision of which an agency is required to provide notice will become final only when the notice is given. Therefore, absent an amendment by the legislature, we cannot depart from the plain language of sections 2001.144(a)(2)(A) and 2001.176. Under those statutes, the Division’s September 12, 2008 rendition of its order-not Star’s receipt of notice thereof-triggered the 30-day period for Star to file a petition for judicial review. Star’s petition for judicial review was untimely.

Remand under APA Section 2001.175(c)

Star also argues that it should have been given the opportunity to obtain new evidence relating to the issue of whether the Division’s order denying Star’s motion for rehearing was, in fact, signed — and, thus, rendered — on Friday, September 12. Star’s contention is that there is a possibility that the order was actually signed on a date after the date reflected on the order. If such were the case, Star argues that its petition may, in fact, be timely. In Star’s response to appellees’ plea to the jurisdiction, Star’s prayer for relief requested that the plea be denied or, as an alternative, that the court remand to the Division to allow Bray’s deposition to be taken on the question of when he actually signed the order denying the motion for rehearing and on unidentified “related issues.”

Section 2001.175(c) of the APA provides that the trial court may order that additional evidence be taken before the agency if a party applies to the court to present additional evidence and the court “is satisfied that the additional evidence is material and that there were good reasons for the failure to present it in the proceeding before the state agency.” Id. § 2001.175(c) (West 2008). We review the district court’s decision to grant or deny such a remand request under an abuse of discretion standard. Langford v. Employees Ret. Sys., 73 S.W.3d 560, 565 (Tex.App.-Austin 2002, pet. denied). A trial court abuses its discretion when it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law. BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 800 (Tex.2002).

In Star’s filings with the district court, Star’s only reference to a request for remand to the agency to develop new evidence was in its prayer for relief in its response to appellees’ plea to the jurisdiction. At the hearing before the district court on appellees’ plea to the jurisdiction, Star’s counsel agreed at the outset that the only issues before the court were appel-lees’ plea to the jurisdiction and Star’s motion to consolidate (in the event the plea was not granted). It was not until the court announced its determination that the plea to the jurisdiction would be granted that Star’s counsel referred to the request for remand, stating “I had a motion coupled with my response.” The district court responded that Star’s request would be denied because the court had already ruled that it had no subject-matter jurisdiction. See State v. Morales, 869 S.W.2d 941, 949 (Tex.1994) (“When a court lacks jurisdiction, its only legitimate choice is to dismiss.”). If Star wanted an opportunity to go back to the agency to develop additional evidence, it was incumbent on Star to bring such a request to the trial court’s attention in a timely fashion. In addition, there is nothing in the record to suggest that the Division’s order denying the motion for rehearing was signed on any date other than the date reflected on its face. Any attempt to go behind the face of the order on this record would be purely speculative. Under these circumstances, we hold that the district court did not abuse its discretion in denying Star’s request for remand to the Division under APA section 2001.175(c).

Conclusion

Having overruled Star’s points on appeal, we affirm the judgment of the district court.

      . Star also argues that the rebuttable presumption applies that Star was notified “on the third day after the date on which the notice is mailed.” See Tex. Gov’t Code Ann. § 2001.142(c) (West 2008). We need not address this issue because, with or without such a presumption, it is undisputed that Star’s petition for judicial review would be timely if the 30-day period commenced from the date Star received notice.

      . "If the last day of any period is a Saturday, Sunday, or legal holiday, the period is extended to include the next day that is not a Saturday, Sunday, or legal holiday.” Tex. Gov’t Code Ann. § 311.014(b) (West 2005); see 43 Tex. Admin. Code § 8.29 (2009) (Tex. Dep't of Transp., Computing Time). October 12, 2008, the 30th day from September 12, 2008, was a Sunday, and October 13 was not a legal holiday.

      . Likewise, the supreme court's application of Commercial Life's reasoning in Meador-Brady Management Corp. v. Texas Motor Vehicle Commission to provisions of the Texas Motor Vehicle Commission Code was in the context of a 15-day period for filing a motion for rehearing. See 866 S.W.2d 593, 595-96 (Tex.1993).

      . Specifically, the supreme court in Commercial Life, in reaching its holding that the time period for filing a motion for rehearing commences when the agency provided notice of its order, stated that it was mindful of the fact that the legislature had recently amended the APTRA to provide that the time period for filing a motion for rehearing commences when the aggrieved party is notified of the agency’s order. See Commercial Life Ins. Co. v. Texas State Bd. of Ins., 774 S.W.2d 650, 652 & n. 1 (Tex.1989). The legislature has not amended the APA to provide that the time period for filing a petition for judicial review does not commence until the agency provides notice of its order denying the motion for rehearing.

      . In fact, this Court has previously held that after an agency denied a party’s motion for rehearing, the agency's non-compliance with its notice requirement under the APTRA did not excuse the aggrieved party's failure to timely file a petition for judicial review. See Navarro Indep. Sch. Dist. v. Brockette, 566 S.W.2d 699, 700-01 (Tex.Civ.App.-Austin 1978, no writ). Star points out that the supreme court in Commercial Life "disapproved” Navarro. See Commercial Life, 774 S.W.2d at 652. However, such disapproval was only to the extent Navarro was "inconsistent with this opinion,” and the supreme court limited its holding in Commercial Life to the time period for filing a motion for rehearing. See id.

      Star contends that our holding makes the notice requirement of APA section 2001.142 as to orders denying motions for rehearing superfluous. However, our holding is not that notice is not required. Our holding is merely that, when such an order is rendered, the provision of notice does not affect APA section 2001.176’s 30-day deadline. See Edwards Aquifer Auth. v. Chemical Lime, Ltd., 291 S.W.3d 392, 404 (Tex.2009) (observing that although a noncompliance penalty indicates statute is mandatory, "this does not suggest that when no penalty is prescribed, 'must' is non-mandatory”).

      . The order contains the phrase "Date: September 12, 2008” in typewritten, bold font next to Bray’s signature.