Because 105 years ago one of their relatives, one of their relatives was an heir? Because they came over from Mexico, and how do u know tony? mom ?

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NUMBER 13-02-00130-CV



COURT OF APPEALS



THIRTEENTH DISTRICT OF TEXAS



CORPUS CHRISTI B EDINBURG



SISTER CARMEN DE LLANO, JOSEPHINE JOHNSON,

INDEPENDENT EXECUTRIX OF THE ESTATE OF

MANUEL DE LLANO, BLANCA A. DE LLANO DE AGUILAR,

MARTHA DE LLANO DE OLIVERA, FERNANDO

DE LLANO, JR., AS PERSONAL REPRESENTATIVE

OF THE ESTATE OF FERNANDO DE LLANO, AND

JOSEFINA DE LLANO, Appellants,



v.



PABLO SUESS AND FROST NATIONAL BANK,

TRUSTEES OF THE JOHN G. KENEDY, JR.

CHARITABLE TRUST, Appellees.



On appeal from the 206th District Court of Hidalgo County, Texas.



MEMORANDUM OPINION



Before Justices Hinojosa, Yañez, and Garza

Memorandum Opinion by Justice Hinojosa



Appellants, Sister Carmen De Llano, Josephine Johnson, independent executrix of the estate of Manuel De Llano, Blanca De Llano De Aguilar, Martha De Llano De Olivera, Fernando De Llano, Jr., as personal representative of the estate of Fernando De Llano, and Josefina De Llano, filed suit against appellees, Pablo Suess and Frost National Bank, Trustees of the John G. Kenedy, Jr. Charitable Trust, for the recovery of real property, asserting various tort claims. A jury returned a verdict in favor of appellees, finding against appellants on all liability theories and in favor of appellees= defenses. In six issues, appellants (1) question the finality of the judgment and the jurisdiction of the trial court, (2) contend the appearance of the Attorney General of the State of Texas violated the Texas and United States Constitutions, (3) contend appellees= appeal to race during closing argument was incurable, (4) contend the trial court erred in failing to disqualify attorney J. A. ATony@ Canales, and (5) contend the jury=s finding on adverse possession requires this Court to render judgment for appellants. We affirm.

A. Background

As this is a memorandum opinion and because all issues of law presented by this case are well settled and the parties are familiar with the facts, we will not recite the law and the facts here except as necessary to advise the parties of this Court's decision and the basic reasons for it. See Tex. R. App. P. 47.4.

B. Finality of Judgment

In their sixth issue, appellants contend the trial court=s judgment is not final because: (1) it adjudicated the claims of Athe Unknown Heirs of Carmen Morell Kenedy;@ (2) it failed to adjudicate appellees= counterclaim for attorneys fees; and (3) it failed to identify, with sufficient particularity, the real property interests involved.[1]

Appellants assert the judgment improperly adjudicates the claims of the unknown heirs of Carmen Morell Kenedy. However, even though a trial court grants more relief than it ought to grant, the judgment is nevertheless final. See Jacobs v. Satterwhite, 65 S.W.2d 653, 655 (Tex. 2001). An order that expressly disposes of the entire case is not interlocutory merely because the record fails to show an adequate motion or other legal basis for the disposition. Lehmann v. Har‑Con Corp., 39 S.W.3d 191, 206 (Tex. 2001). Language that the plaintiff take nothing by his claims in the case, or that the case is dismissed, shows finality if there are no other claims by other parties. Id. at 205.

Appellants further assert that because appellees requested an award of attorneys fees as a counterclaim, and no language in the judgment specifically states that they take nothing by their counterclaims, the judgment is not final. However, when a judgment, not intrinsically interlocutory in character, is rendered and entered in a case regularly set for a conventional trial on the merits, it will be presumed for appeal purposes that the court intended to, and did, dispose of all parties legally before it and of all issues made by the pleadings between such parties. Moritz v. Preiss, 121 S.W.3d 715, 719 (Tex. 2003). Furthermore, claims raised by pleadings not expressly disposed of by a judgment are denied by implication. Rackley v. Fowlkes, 89 Tex. 613, 36 S.W. 77, 78 (1896).

The judgment specifically says it is a AFinal Judgment,@ acknowledges appellees as counter-plaintiffs, and awards appellees the substantive relief requested in their counterclaims. Appellees admit that they did not produce any evidence in support of their claim for attorneys fees. Accordingly, we conclude that appellees= claim for attorneys fees was implicitly denied.

Finally, appellants argue that the judgment fails to identify with sufficient particularity the real property interests involved. However, because appellants fail to cite to any authority for their contention, this argument is waived. See Tex. R. App. P. 38.1(h). Appellants= sixth issue is overruled.

C. Participation of Attorney General

In their first issue, appellants contend the trial court violated the Texas and United States Constitutions by allowing the Attorney General of the State of Texas to appear before the jury on behalf of appellees. They assert that the attorney general=s participation in this suit constitutes excessive entanglement of the State and religious organizations. We note that appellants did not raise this contention before the trial court.

The attorney general intervened in this matter pursuant to section 123.002 of the property code, which provides:

For and on behalf of the interest of the general public of this state in charitable trusts, the attorney general is a proper party and may intervene in a proceeding involving a charitable trust. The attorney general may join and enter into a compromise, settlement agreement, contract, or judgment relating to a proceeding involving a charitable trust.



Tex. Prop. Code Ann. '123.002 (Vernon 1995).



Immediately before voir dire, when asked if there were any other Ahousekeeping matters@ to address, without challenging the constitutionality of the statutory basis for the attorney general=s intervention, counsel for appellants expressed concern regarding the attorney general=s participation at trial. When asked by the trial court if appellants were making a motion, appellants= counsel responded:

We are asking the Court to either limit her participation or at least set some ground rules, because if she is allowed unfettered access to this litigation, she will be essentially acting in violation of the constitutional restrictions that are set out in the Texas Constitution that prohibit the interference or the assistance of the state to any particular religious group. And we believe that=s improper and illegal.



When asked a second time by the trial court what relief appellants were requesting, counsel responded:

. . . . We want the Court to set some very specific ground rules that will limit the presentation to the jury of any inference or possibility in their minds that they will perceive the State as lending its weight and prestige to a secular religious organization, which we believe is improper under the constitution. We need some rules, some relief that will protect the jury from seeing the attorney general or hearing the attorney general arguing or representing religious entities.



The trial court then set forth the requested parameters and asked appellants if there was anything else needed from the plaintiff=s perspective. Counsel for appellants stated, AThat=s it, your Honor.@

The record reflects that appellants did not challenge the constitutionality of section 123.002 of the property code. Appellants only asked the trial court to set parameters for the attorney general=s participation at trial, and the trial court granted appellants= request. The trial court then inquired whether there was anything else, and appellants stated they had no further requests.

Accordingly, we conclude that a constitutional challenge was not properly raised in the trial court, and a constitutional challenge not raised properly in the trial court is waived on appeal. See Wood v. Wood, 320 S.W.2d 807, 813 (Tex. 1959); Walker v. Employees Ret. Sys., 753 S.W.2d 796, 798 (Tex. App.BAustin 1988, writ denied). Appellants= first issue is overruled.

D. Improper Jury Argument

In their second issue, appellants contend that appellees= appeal to race and national origin during closing argument constituted improper jury argument that was incurable. Specifically, appellants challenge the reference to Carmen Morell Kenedy as a Agood old Mexican gal@ and Alittle Mexicanita@ and a reference to Ahalf-Mexicans.@

Incurable reversible error occurs when any attorney suggests, either openly or with subtlety and finesse, that a jury feel solidarity with or animus toward a litigant or a witness because of race or ethnicity. Tex. Employers Ins. Ass=n v. Guerrero, 800 S.W.2d 859, 866 (Tex. App.BSan Antonio 1990, writ denied); see Mission Res., Inc. v. Garza Energry Trust, 2005 Tex. App. LEXIS 3443, at *45-46 (Tex. App.BCorpus Christi May 5, 2005, no pet. h.) (Acourtroom strategies appealing to racial or ethnic biases are highly improper and unfairly prejudicial@). To prove incurable jury argument, the complaining party must show (1) improper argument was made; (2) that was not invited or provoked; (3) that was properly preserved at trial, such as by objection, motion to instruct or motion for mistrial; (4) error was not curable by instruction, prompt withdrawal of statement, or reprimand by judge; and (5) argument, by nature, degree, and extent, constituted reversible error based on examination of the entire record to determine the argument's probable effect on a material finding. See Standard Fire Ins. Co. v. Reese, 584 S.W.2d 835, 839‑40 (Tex. 1979); Tex. Employers Ins. Ass'n v. Puckett, 822 S.W.2d 133, 135 (Tex. App.BHouston [1st Dist.] 1991, writ denied).

Appellees argue that none of the statements made during closing argument constitute incurable jury argument and, moreover, any statements made by appellees were provoked by appellants= own appeal to racial prejudice that began during voir dire and continued throughout the trial. We agree.

During voir dire, appellants questioned jurors about Tejano history and referred to Dr. Andres Tijerina, a Tejano historian, who would testify at trial. During opening argument, appellants referred to Carmen as a poor Mexican girl who had her property stolen. During trial, appellants called Dr. Tijerina, who testified at length about the adverse treatment of people of Mexican descent by people of Anglo heritage and the unfair acquisition of land by Anglos from people of Mexican descent. Appellants also presented testimony regarding the use of the Texas Rangers by Captain King to murder people of Mexican descent, steal their land, and use lawyers to fix the documents. We conclude that such comments and evidence invited or provoked the challenged argument. Appellees= argument was nothing more than an appeal to the jury to disregard ethnicity, an issue first raised by appellants in this case.[2] Appellants second issue is overruled.



E. Disqualification of Defense Counsel

In their third issue, appellants contend the trial court erred by failing to disqualify attorney J. A. ATony@ Canales. Because appellants fail to (1) include any record references, (2) set forth the law regarding the disqualification of attorneys, and (3) provide any substantive analysis regarding this issue, we conclude this issue is waived. See Tex. R. App. P. 38.1(h) (AThe brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.@). Appellants= third issue is overruled.

F. Jurisdiction

Despite their success in opposing appellees= plea to the jurisdiction, in their fourth issue, appellants request A[o]ut of an abundance of caution and to finally settle the parties= jurisdictional dispute . . . a ruling from this Court stating which court properly may exercise subject matter jurisdiction over this case. . . .@

In a plea to the jurisdiction, appellees argued that the trial court lacked jurisdiction because appellants= claims constituted an impermissible collateral attack on judgments issued by courts of competent jurisdiction. However, we conclude that appellants= petition was not an attack on these judgments. Appellants= petition did not contest the validity of Carmen=s or any other individual=s will, nor did it seek to set aside any orders. Rather, it sought to clarify what interest Carmen held in the capital stock of Kenedy Pasture Company. The admission of Carmen=s will to probate is irrelevant to appellants= right to recovery or to the issues presented by their petition.

Moreover, since appellants= petition did not seek to avoid the effect of the court=s order, the action is not a collateral attack. See Solomon, Lambert, Roth & Assoc. v. Kidd, 904 S.W.2d 896, 900 (Tex. App.BHouston [1st Dist.] 1995, no writ) (collateral attack is one that attempts to avoid effect of judgment in proceeding brought for some other purpose and seeks to show original judgment is void). Appellants= fourth issue is overruled.

G. Adverse Possession

In their fifth issue, appellants contend the jury=s favorable finding on appellees= affirmative defense of adverse possession establishes that appellants had a Apresent possessory interest in real property.@ Therefore, appellants argue, this Court should render judgment for appellants for no less than one-fourth of all property interests and proceeds claimed by appellees. Appellants make this argument even though the jury found unanimously in favor of appellees, answering Ano@ to all liability questions.

An affirmative defense is by its nature "one of confession and avoidance" which seeks to establish an independent reason why the plaintiff should not prevail. Tex. Beef Cattle Co. v. Green, 921 S.W.2d 203, 212 (Tex. 1996). However, establishing an affirmative defense in no way relieves the plaintiff from proving the elements of his claim. If we were to accept appellants= argument that a finding of an element of an affirmative defense avoiding liability implicitly establishes the liability the defense seeks to avoid, we believe it would nullify the function of affirmative defenses. Accordingly, appellants= fifth issue is overruled.

The judgment of the trial court is affirmed.



FEDERICO G. HINOJOSA

Justice



Memorandum Opinion delivered and filed this

the 16th day of June, 2005.

[1] At oral argument, appellants argued, for the first time, that the judgment does not adjudicate the rights of the Attorney General of the State of Texas. This argument was not briefed, and a new issue may not be presented for the first time at oral argument. See Tex. R. App. P. 38.1(e), 39.2; see also Vawter v. Garvey, 786 S.W.2d 263, 264 (Tex. 1990); In the Interest of C.A.K., 155 S.W.3d 554, 562 n.5 (Tex. App.BSan Antonio 2004, pet. filed).



[2] During closing argument, appellees= counsel, J. A. ATony@ Canales, argued:



This is a classic lawsuit abuse case, let me tell you right now. I am telling you. It is B they are doing nothing else but trying to squeeze money out of us. Why? Because 105 years ago one of their relatives, one of their relatives was an heir? Because they came over from Mexico, all of a sudden, because the politics of South Texas has changed and we now have a majority of Hispanic jurors? Do you know, just because you happen to be of Mexican descent doesn=t mean you are going to rule for somebody just for that. We are Americans; right? You told me B you promised me when we started this case, you are going to call it the way it is. I said in the beginning, this is not a case about a bunch of Rangers coming and killing a bunch of Mexicans and taking their property away. Remember I said that? Is this what this case is about?

Too Bad God and His Son were watching while the Devil laughed..........Amaya, go finger yourself. Schearer the got stings and film lesbo a leopard...

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"Having decided that "a motivating factor" is the correct standard of causation for the plaintiff in all TCHRA unlawful employment practice claims"

And of course the TSC "knows" the motive since .....


"Having decided that "a motivating factor" is the correct standard of causation for the plaintiff in all TCHRA unlawful employment practice claims"



IN THE SUPREME COURT OF TEXAS

No. 99-1042

Quantum Chemical Corporation, Petitioner

v.

Ralf Toennies, Respondent

On Petition for Review from the Court of Appeals for the First District of Texas

Argued on October 11, 2000

Chief Justice Phillips delivered the opinion of the Court, joined by Justice Enoch, Justice Baker, Justice Hankinson, and Justice O'Neill.

Justice Hecht filed a dissenting opinion, joined by Justice Owen.

Justice Abbott did not participate.

In this age discrimination suit brought under the Texas Commission on Human Rights Act ("TCHRA"), we must decide what standard of causation a plaintiff must meet. The relevant parts of the TCHRA are patterned after Title VII of the federal Civil Rights Act. Thus, we would ordinarily look to federal precedents for interpretative guidance to meet the legislative mandate that the TCHRA is intended to "provide for the execution of the policies of Title VII of the Civil Rights Act of 1964 and its subsequent amendments." Tex. Labor Code § 21.001(1). However, because the federal courts are closely divided on the issue, we follow the plain meaning of Texas Labor Code section 21.125. This section provides that a plaintiff establishes an unlawful employment practice by showing that discrimination was "a motivating factor" for the practice. We therefore affirm the judgment of the court of appeals, 998 S.W.2d 374, and remand the case to the trial court for further proceedings.

I.

Ralf Toennies was an engineer for DuPont at its La Porte facility when Quantum Chemical bought the facility in 1987. Two years later, Quantum promoted him to Senior Chemical Engineer. Before 1994, Toennies's employee evaluations were satisfactory; but in early 1994, a few months after he began reporting to a new supervisor, his performance evaluation was below expectations. Quantum terminated Toennies in late 1994, when he was 55 years old.

Toennies filed a complaint with the Texas Commission on Human Rights, which issued a right-to-sue letter. See Tex. Labor Code § 21.252. He then sued Quantum under the Texas Commission on Human Rights Act, Tex. Labor Code §§ 21.001-.556, alleging that age discrimination motivated the firing. Because there was no direct evidence of discrimination, Toennies relied on circumstantial evidence to make his case and to disprove Quantum's contention that it terminated him for poor job performance. At the close of evidence, Toennies proposed to instruct the jury "that an unlawful employment practice is established when the Plaintiff demonstrates that his age was a motivating factor for his discharge, even if other factors also motivated the discharge." The court rejected this language, and instead instructed "that an employer commits an unlawful employment practice if, because of age, the employer discharges an individual."

During deliberations, the jury sent a note to the judge inquiring whether Toennies had to show that "[a]ge was a determining factor" or that "[a]ge was the sole determining factor" in his dismissal. The judge declined to answer the question or otherwise elaborate on the initial instruction. The jury later reported it was deadlocked. After an Allen ⁽¹⁾ charge, the jury returned a verdict that Quantum was not liable. The trial court rendered judgment on the verdict, but the court of appeals reversed, agreeing with Toennies that the proper standard for causation in an employment discrimination suit is whether discrimination was "a motivating factor." 998 S.W.2d at 378-79.

II.

The trial court's jury instruction tracked Texas Labor Code section 21.051:

An employer commits an unlawful employment practice if because of race, color, disability, religion, sex, national origin, or age the employer: (1) fails or refuses to hire an individual, discharges an individual, or discriminates in any other manner against an individual in connection with compensation or the terms, conditions, or privileges of employment . . . .

Section 21.051 is substantively identical to its federal equivalent in Title VII, with the exception that the federal law does not protect age and disability. ⁽²⁾ 42 U.S.C § 2000e-2(a).

Although Toennies's requested jury instruction began with the statement that an employer commits an unlawful employment practice if it discharges an individual "because of" age, the instruction also used the language of the first part of Texas Labor Code section 21.125. That section is entitled "Clarifying Prohibition Against Impermissible Consideration of Race, Color, Sex, National Origin, Religion, Age, or Disability in Employment Practices." Section 21.125 provides a more specific standard of causation than the one in section 21.051, and also provides a defense that may limit the plaintiff's remedies even if discrimination is present:

(a) Except as otherwise provided by this chapter, an unlawful employment practice is established when the complainant demonstrates that race, color, sex, national origin, religion, age, or disability was a motivating factor for an employment practice, even if other factors also motivated the practice . . . .

(b) In a complaint in which a complainant proves a violation under Subsection (a) and a respondent demonstrates that the respondent would have taken the same action in the absence of the impermissible motivating factor, the court may grant declaratory relief, injunctive relief . . . , and attorney's fees and costs . . . , but may not award damages or issue an order requiring an admission, reinstatement, hiring, promotion, or back pay.

Tex. Labor Code § 21.125. These two provisions are nearly identical to section 107 of the federal Civil Rights Act of 1991 ("section 107"). Pub. L. No. 102-106, § 107 (codified at 42 U.S.C. § 2000e-2(m) and 42 U.S.C. § 2000e-5(g)(2)(B)) (amending the Civil Rights Act of 1964).

One of TCHRA's purposes is to "provide for the execution of the policies of Title VII of the Civil Rights Act of 1964 and its subsequent amendments." Tex. Labor Code § 21.001(1). Therefore, analogous federal statutes and the cases interpreting them guide our reading of the TCHRA. NME Hosps., Inc. v. Rennels, 994 S.W.2d 142, 144 (Tex. 1999). Even though the statutory language appears to provide that "a motivating factor" is the causation standard in all TCHRA/Title VII cases alleging unlawful employment practices, federal case law makes the issue less simple than it appears. Quantum urges us to follow two federal circuit courts that generally use a "but for" standard of causation, reserving "a motivating factor" as the standard in only those discrimination cases in which the plaintiff has direct evidence of discriminatory animus. Using a motivating factor as the standard in all employment discrimination cases, Quantum argues, would destroy the intricate framework traditionally employed to analyze such claims.

Federal courts recognize two types of Title VII employment discrimination cases, each requiring different elements of proof. The first type is the "pretext" case, in which the plaintiff's ultimate goal is to show that the employer's stated reason for the adverse action was a pretext for discrimination. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973). The plaintiff can usually provide sufficient evidence of discriminatory intent by showing that the employer's proffered reason for the adverse action is false. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, ___; 120 S. Ct. 2097, 2106-2109 (2000). The second type of case is the "mixed-motive" case, in which the plaintiff has direct evidence of discriminatory animus. This direct evidence shifts the burden of proof to the employer to show that legitimate reasons would have led to the same decision regardless of any discriminatory motives. Price Waterhouse v. Hopkins, 490 U.S. 228, 244-45 (1989); Starceski v. Westinghouse Elec. Corp., 54 F.3d 1089, 1095-99 (3rd Cir. 1995).

Thus, how a case will be classified depends entirely upon the presence or absence of direct evidence. Price Waterhouse, 490 U.S. at 276 (O'Connor, J., concurring) (to qualify for mixed-motive treatment, a plaintiff "must show by direct evidence that an illegitimate criterion was a substantial factor in the decision"); Starceski, 54 F.3d at 1097 ("[T]he distinction between a Price Waterhouse and a McDonnell Douglas/Burdine case lies in the kind of proof the employee produces on the issue of bias."). If the plaintiff has only circumstantial evidence of discrimination, it will be classified as a pretext case regardless of how many motives the employer had. Starceski, 54 F.3d at 1097-98; Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1216 (5th Cir. 1995).

The Supreme Court defined the order and allocation of proof for a pretext case in McDonnell Douglas and Burdine. Initially, the complainant must establish a prima facie case of discrimination. McDonnell Douglas, 411 U.S. at 802. Although the precise elements of this showing will vary depending on the allegations, id., the plaintiff's burden at this stage of the case "is not onerous." Burdine, 450 U.S. at 253. The burden of going forward then shifts to the employer to "articulate some legitimate, nondiscriminatory reason for the employee's rejection." McDonnell Douglas, 411 U.S. at 802. The offer of a legitimate reason eliminates the presumption of discrimination created by the plaintiff's prima facie showing. Burdine, 450 U.S. at 254. The burden then shifts back to the complainant to show that the employer's stated reason was a pretext for discrimination. McDonnell Douglas, 411 U.S. at 805-07; Burdine, 450 U.S. at 256.

Under the original Civil Rights Act of 1964, federal courts required the complainant in a pretext case to prove that "but for" the impermissible discrimination, the employer would not have taken the action against the complainant. See, e.g., McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 282 n.10 (1976) (employing the "but for" test in dicta); Kauffman v. Sidereal Corp., 695 F.2d 343, 345 (9th Cir. 1982); Spagnuolo v. Whirlpool Corp., 641 F.2d 1109, 1112 (4th Cir. 1981). But when the Supreme Court first recognized mixed-motive cases under the 1964 Act, it decided to apply a different causal standard. In a mixed-motive case, the Court held, a plaintiff needed only to establish that the employer's discriminatory intent was "a motivating part" in the employment decision. Price Waterhouse, 490 U.S. at 244-45. A plurality of the Court clarified this standard by explaining:

In saying that gender played a motivating part in an employment decision, we mean that, if we asked the employer at the moment of the decision what its reasons were and if we received a truthful response, one of those reasons would be that the applicant or employee was a [member of a protected class].

Id. at 250. As in a pretext case, the burden of persuasion on the issue of discrimination always remained on the complainant. But once the mixed-motive plaintiff proved an improper motive, the employer could avoid all liability by "proving that it would have made the same decision even if it had not allowed [the improper motive] to play such a role." Id. at 244-45; see also id. at 260 (White, J., concurring); id. at 269 (O'Connor, J., concurring).

Congress responded to Price Waterhouse by enacting section 107 of the Civil Rights Act of 1991. Congress apparently was displeased with the Price Waterhouse approach and wanted to ensure that employers with discriminatory motives would not completely prevail merely by proving they would have made the same decision for legitimate reasons. Accordingly, section 107(b) allows a court to award attorney's fees and other limited forms of relief so long as the plaintiff has proven that discrimination was a motivating factor in the employment decision, even if the employer's decision would have been identical in the absence of discrimination. However, the plaintiff is not entitled to damages, back pay, or reinstatement if the employer proves that the same decision would have been made even without the discrimination. 42 U.S.C. § 2000e-5(g)(2)(B).

The statute's plain language does not indicate that Congress intended section 107 to apply only in mixed-motive cases. Rather, section 107(a) simply says that "an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice." 42 U.S.C. § 2000e-2(m). Establishing an unlawful employment practice is, of course, the entire point of a plaintiff's suit, no matter how it is judicially classified.

Nevertheless, the federal circuit courts disagree over whether section 107 and its "motivating factor" standard apply to all Title VII employment discrimination claims or only to claims of the type at issue in Price Waterhouse. The Supreme Court has stated in dicta that section 107 "responds to [Price Waterhouse] by setting forth standards applicable in 'mixed-motive' cases." Landgraf v. USI Film Prods., 511 U.S. 244, 251 (1994). But Landgraf was silent about section 107's effect on pretext cases, and its remark about mixed-motive cases was dicta in any event. Nevertheless, two federal court of appeals decisions have relied in part on Landgraf in deciding that section 107 applies only to mixed-motive cases. Watson v. Southeastern Penn. Transp. Auth., 207 F.3d 207, 219 (3rd Cir. 2000), cert. denied 69 U.S.L.W. 3552 (2001); Fuller v. Phipps, 67 F.3d 1137, 1143 (4th Cir. 1995).

Watson and Fuller emphasize that section 107, by its own terms, applies "even though other factors also motivated the [unlawful] practice." See Watson, 207 F.3d at 217; Fuller, 67 F.3d at 1143-44. Because the statute contemplates the same mixture of legitimate and illegitimate motives at issue in Price Waterhouse, both courts reasoned that Congress must have intended section 107 to affect only mixed-motive cases. Watson, 207 F.3d at 217; Fuller, 67 F.3d at 1143-44. But neither section 107's plain language nor the legislative history on which Watson and Fuller rely shows that Congress drew any distinction between pretext and mixed-motive cases. See H. Rep. No. 102-40(I), at 583-87, reprinted in 1991 U.S.C.C.A.N. 549; Watson, 207 F.3d at 218-19; Fuller, 67 F.3d at 1144. And in fact, two other federal circuits apply the "motivating factor" standard in pretext as well as mixed-motive cases. Fields v. New York State Office of Mental Retardation & Developmental Disabilities, 115 F.3d 116, 121 (2nd Cir. 1997) (a pretext case in which court held the plaintiff "was entitled to have a verdict in his favor if he could persuade the jury that race was a substantial motivating reason for the adverse employment actions") (emphasis in original); ⁽³⁾ Harris v. Shelby County Bd. of Educ., 99 F.3d 1078, 1084-85 (11th Cir. 1996) (affirming summary judgment based on the defendant's affirmative defense, but remanding to consider whether discrimination was a motivating factor that would entitle the plaintiff to attorney's fees). ⁽⁴⁾ Both Texas and federal model jury instructions also employ a motivating factor standard for pretext cases. Comm. on Pattern Jury charges, State Bar of Tex., Texas Pattern Jury Charges-Business, Consumer, Employment PJC 107.6 (1998); 3 Edward J. Devitt, et al., Federal Jury Practice and Instructions: Civil § 104.03 (West Supp. 2000); Eighth Circuit Manual of Model Jury Instructions: Civil 5.31 (West 1999); Ninth Circuit Manual of Model Jury Instructions: Civil 11.5.1 (West 1997). To apply our own section 21.125 to Toennies's lawsuit, we must determine which of these approaches is correct.

III.

Because Toennies offered only circumstantial evidence that Quantum Chemical discriminated against him because of his age, his case falls into the McDonnell Douglas pretext category. Therefore, if section 21.125 does not apply to pretext suits, the proper standard of causation for Toennies's suit would be the "but for" test that courts originally used for pretext claims. But if it does apply to all TCHRA employment discrimination claims, Toennies need only prove that age discrimination was a motivating factor in Quantum's decision to terminate him.

A basic rule of statutory construction is that we enforce the plain meaning of an unambiguous statute. Tune v. Texas Dep't of Pub. Safety, 23 S.W.3d 358, 363 (Tex. 2000). Section 21.125(a) provides that "an unlawful employment practice is established when the complainant demonstrates that race, color, sex, national origin, religion, age, or disability was a motivating factor for an employment practice . . . ." There are no relevant textual restrictions on the applicability of this section to unlawful employment practices. Although section 21.125(a) begins with the qualifying words "[e]xcept as otherwise provided by this chapter," nowhere else does the TCHRA provide a different causal standard for pretext cases.

In our view, neither of the two federal circuit courts that use "a motivating factor" only for mixed-motive cases has adequately explained what justifies moving beyond the statute's unambiguous language. The mere fact that section 107, like Price Waterhouse, contemplates cases in which the employer may have a mixture of legitimate and discriminatory motives does not, without more, mean that Congress intended to limit section 107 to mixed-motive cases. Had Congress wanted to do so, it could easily have provided that "an employer with more than one motive commits an unlawful employment practice when discrimination was a motivating factor for the practice." Instead, the federal and state statutes provide that the employer commits an unlawful employment practice if discrimination "was a motivating factor for an employment practice, even if other factors also motivated the practice." Tex. Labor Code § 21.125(a); accord 42 U.S.C. § 2000e-2(m). The plain meaning of this statute establishes "a motivating factor" as the plaintiff's standard of causation in a TCHRA unlawful employment practice claim, regardless of how many factors influenced the employment decision. In the absence of meaningful Supreme Court authority, we therefore enforce the statute's plain meaning. Fields, 115 F.3d at 121; Harris, 99 F.3d at 1084-85.

IV.

Having decided that "a motivating factor" is the correct standard of causation for the plaintiff in all TCHRA unlawful employment practice claims, we must now determine whether the trial court's jury instruction was erroneous. The instruction followed the language of Texas Labor Code section 21.051, which states that an employer commits an unlawful employment practice if the employer makes an adverse decision "because of" the employee's age. However, this provision cannot take precedence over the "motivating factor" causation standard of section 21.125(a). The difference between the two statutes is that section 21.051 states circumstances in which an employer has committed an unlawful employment practice, whereas section 21.125(a) explicitly describes what a complainant must show in order to prevail in a lawsuit. To the extent there is any conflict between these provisions, the language that specifies the plaintiff's burden-section 21.125(a)-should control on that issue. Therefore, the trial court should have instructed the jury that Toennies established an unlawful employment practice if he demonstrated that age was a motivating factor in Quantum's decision to terminate him.

An incorrect jury instruction is only grounds for reversal if it probably caused the rendition of an improper judgment. Tex. R. App. P. 61.1(a); Louisiana-Pacific Corp. v. Knighten, 976 S.W.2d 674, 675-76 (Tex. 1998). To determine whether the instruction probably caused an improper judgment, we examine the entire record. Timberwalk Apartments, Partners, Inc. v. Cain, 972 S.W.2d 749, 756 (Tex. 1998). An improper instruction is especially likely to cause an unfair trial when the trial is contested and the evidence sharply conflicting, as it was in the present case. Id. at 756, n.25 (citing Patterson Dental Co. v. Dunn, 592 S.W.2d 914, 921 (Tex. 1979)).

As the court of appeals recognized, the problem with requiring the jury to consider whether Quantum discharged Toennies "because of" his age is that the words are inherently ambiguous. 998 S.W.2d at 378. "Because of" can reasonably be interpreted to require that the improper motivation be either the sole factor or one of several factors that led to Toennies's firing. That this ambiguity confused the jurors is readily apparent from their initial deadlock and note to the trial judge, inquiring whether Toennies had to show that age was a determining factor or the sole determining factor. See Texas Dept. of Human Servs. v. Hinds, 904 S.W.2d 629, 637 (Tex. 1995) (error was harmful when jury instruction stated the wrong standard of causation in a Whistleblower Act suit and the facts were vigorously disputed); cf. Reinhart v. Young, 906 S.W.2d 471, 473 (Tex. 1995) (error was not harmful because the jury was unanimous and there was no indication that the jury based its verdict on the allegedly erroneous instruction). In light of this obvious confusion, we agree with the court of appeals that the "because of" instruction is reversible error because it probably caused the rendition of an improper judgment.

We also reject Quantum's argument that Toennies failed to preserve error by submitting a substantially correct instruction of his own. Although Toennies requested a jury instruction reflecting only section 21.125(a), the instruction was not incomplete because it omitted the defense contained in section 21.125(b). It is the defendant's burden to plead and request instructions on an affirmative defense. Tex. R. Civ. P. 94; T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 223 (Tex. 1992); Little Rock Furniture Mfg. Co. v. Dunn, 222 S.W.2d 985, 989 (Tex. 1949).

V.

Finally, Quantum argues that there was legally insufficient evidence of age discrimination to submit the case to the jury even under a motivating factor standard. We disagree. A no-evidence point will be sustained only if there is no more than a scintilla of evidence to prove the existence of a fact. General Motors Corp. v. Sanchez, 997 S.W.2d 584, 588 (Tex. 1999). Toennies presented some evidence that Quantum's stated reasons for the dismissal were a pretext for age discrimination.

One of Toennies's witnesses at trial was Darryl Churchwell, a senior project manager who had worked closely with Toennies at Quantum for three or four years. The evidence shows in particular that Toennies had worked in support of Churchwell on a major "turnaround" project in the months immediately before the firing. Churchwell testified that Toennies was "diligent" and "very competent." When asked to rate Toennies's knowledge of the profession, Churchwell rated him as a 10 on a scale of one to ten. Churchwell also gave Toennies "a 7 or 8" on the same scale for performance. Overall, Churchwell's assessment was that Toennies was an above average engineer.

Toennies's evidence also includes a letter, dated February 11, 1994, from a coworker to Toennies's supervisor, John Olivo. It responds to Olivo's negative job review by stating: "Ralf Toennies is an outstanding E&I Engineer in his discipline. He is always co-operative and informative in dealing with this Design Group on all projects. Most important, Ralf is very supportive to this Group and has never said anything derogatory about this group." This letter of support was written shortly after the first of the negative performance reviews that Toennies claims were a pretext for age discrimination.

Also in the record are several emails sent to Toennies from coworkers during 1994, praising him for his work on projects during the period Quantum claims his work was unacceptable. One of these is a message dated December 6, 1994 (just two days before Toennies was fired), telling Toennies that "Your assistance enabled us to complete our data center relocation on schedule and under budget." Several more exhibits contain statements by Olivo, the supervisor who gave Toennies the bad reviews, which indicate that Toennies's work was good. For instance, a June 21, 1994 email from Olivo states that "This review by [Toennies] saved us about 30,000 dollars on pox alt fuels." Olivo's handwritten notations on other documents from February and March, around the time of the first bad employee evaluation, also compliment Toennies on his work.

This is more than a scintilla of evidence that Quantum regarded Toennies's job performance as satisfactory, which contradicts the company's argument that he was fired for poor performance. Proving the employer's stated reason for the firing is pretext is ordinarily sufficient to permit the trier of fact to find that the employer was actually motivated by discrimination. Reeves, 530 U.S. 133, ___; 120 S. Ct. at 2108-09; see also Continental Coffee Products Co. v. Cazarez, 937 S.W.2d 444, 451 (Tex. 1996) (when employer claimed it fired employee for violating policy against unexplained three-day absences, plaintiff's testimony that she was fired before expiration of the three days was some evidence of retaliation). In addition to the pretext evidence, Toennies submitted evidence that he was replaced by two considerably younger engineers, and statistical evidence that older Quantum engineers had a much higher rate of turnover than their younger counterparts. There is, therefore, legally sufficient evidence in support of Toennies's claim that Quantum was motivated by age discrimination when it fired him.

Conclusion

Section 21.125 of the Texas Commission on Human Rights Act requires an employment-discrimination plaintiff to show that discrimination was a motivating factor in an adverse employment decision. The act makes no distinction between pretext and mixed-motive cases. Because the federal courts are divided on how to apply the federal equivalent of this provision, we follow the statute's plain meaning. Accordingly, we affirm the judgment of the court of appeals and remand this cause to the trial court for further proceedings.

_________________________________

Thomas R. Phillips

Chief Justice

DELIVERED: March 8, 2001

1. Allen v. United States, 164 U.S. 492, 501 (1896) (approving supplemental instructions that jurors should "decide the case if they could conscientiously do so").

2. Federal law protects age and disability under the Age Discrimination in Employment Act, 29 U.S.C. §§ 621-634, and the Americans with Disabilities Act, 42 U.S.C. §§ 12101-12213. Federal analysis of these types of employment discrimination claims is generally similar to the approach under Title VII.

3. The dissent suggests that Hayden v. County of Nassau, 180 F.3d 42, 53 (2nd Cir. 1999), overrules or limits Fields. We disagree. Hayden, like Landgraf before it, states that section 107 applies to mixed-motive discrimination claims, but it does not discuss its applicability to pretext cases. Id. Moreover, the section 107 discussion in Hayden is dicta, because the court itself states that "[t]he instant suit is entirely devoid of any Title VII claims." Id.

4. We note that a recent Fourth Circuit case also takes the view that the "motivating factor" standard applies to all Title VII claims. Baird ex rel. Baird v. Rose, 192 F.3d 462, 470 (4th Cir. 1999). However, Baird is potentially distinguishable from the same circuit's earlier Fuller decision because Baird involves the standard of causation in the context of a defendant's motion for summary judgment based on a failure to state a claim. Baird, 192 F.3d at 466-67; see also Fed. R. Civ. P. 12(b)(6). When the evidence has not yet been fully developed at trial and it is not apparent whether the plaintiff's case is pretext or mixed-motive, the lower standard of causation is logically the proper one to apply in deciding whether the plaintiff has stated a claim for relief.

Will this death be "accidental" because the "consensual" Smith says so?

What is sick is , post 28 is that you are not sick of "non nonchalant" way you are determined to get YOUR way.

"It is not like some one died or anything"? Right?

If it was Marty Jasso, would it still be "an accident"?

I remember not too long ago a cross was torched on a CCPD officers lawn, but for some reason the "sicko" has not been caught.

Is it not true that shooting range masnger or super John Graham the DMC instructor (who stole former DMC professor Alberto Benitez's "laptop" after he was in the hospital from being shot in his own home?

Where is it?

August 8, 2003


Going…Going…Going Online This Fall
High demand spurs College’s Death Investigation Program to offer Internet courses worldwide

When Del Mar College began offering its Death Investigation Program two years ago, 33 students began taking one of the first three courses developed. Over 100 other local students had to put their name on a waiting list to enroll in the classes.

But a partnership that emerged nearly four years ago with the U.S. Congress, the Kitsap County Coroner’s Office in Washington State, the Nueces County Medical Examiners Office and local computer software company INDX, Inc. is now putting death investigation at the forefront on the Internet. This fall, Del Mar will begin offering its courses online to reach more students across the country–even around the world.

“Our program has grown exponentially during the past two years,” says John Graham, instructor of criminal justice. “And we expect even more growth when our online degree program is promoted internationally through the NOMIS Project.” Online courses the College will offer include Death Investigation I, Death Investigation II and the Legal and Social Aspects of Death and Dying.

The Network of Medicolegal Investigative Systems, known as NOMIS, is a computer program developed and owned by INDX, Inc. The company offered to modify NOMIS for the government to assist in the investigation of tracking incidences of death, including those caused by weapons of mass destruction and bioterrorism. The program will facilitate the collection, analysis and retrieval of data in several areas, including identification of missing/unidentified deceased persons; mass fatality victim identification; investigator training and certification; electronic death registration; evidence control and disposition; Emergency Room casualty tracking; military combat aid station tracking; contagious diseases and epidemics; AMBER Alert communications; serial homicides; among several others.

NOMIS will offer a comprehensive solution to the needs of medicolegal and law enforcement jurisdictions and provide a common national infrastructure that serves multiple agencies at all levels of government. National security, national defense, criminal justice, public health and disaster mitigation, response and recovery will all benefit from the application.

The partnership is sponsoring the deployment of the NOMIS Basic Death Investigation Web Service application this month with an anticipated in-depth testing date set for Aug. 8. The Web site, located at www.nomisproject.com, will also link to Del Mar’s Death Investigation Program.

Of the partnership, Graham says, “This marriage was made in heaven, not only for Del Mar College but for the entire nation.” He reiterates that under the agreement, NOMIS will provide worldwide instant access to the College’s Death Investigation Program while Del Mar will have perpetual access to data stored onsite for research purposes or educational needs. “This is a great deal for us.”
Graham says that in 2001, U.S. Congressman Solomon Ortiz successfully funneled a line item appropriation through the Department of Justice as part of the 2002 national budget to fund INDX, Inc.’s expansion of the NOMIS application’s abilities.

According to Graham, NOMIS was created using “what experts called an impossible amount of funding, only $300,000, to complete what normally takes millions of dollars.” Del Mar College and INDX, Inc. worked together and are now close to completing the second version of the application.

“Del Mar College has achieved a minor miracle with the funding received in the line item appropriation,” he notes. “We created a new degree, a national data collection program and retained the right to access data from that program. We could not afford to purchase this kind of powerful tool or build it without the dedication of College faculty with the Legal Professions and Computer Science Departments and Information Technology personnel, who all had a hand in making this a reality.”

Additionally, Del Mar Criminal Justice students tested the Alpha version of NOMIS using a simulated attack on the Port of Corpus Christi. Many fatalities were incorporated into the exercise so that students could pretend to be first responders to a central emergency command post.

“With no training, they were able to master the program and begin downloading data within five minutes,” Graham says. “This type of usability is of paramount importance. If this system had been available on 9-11, the process of recovery and identification may have been enhanced.”

Graham says that requests for entry into the Death Investigation Program continuously come from individuals across the nation. “Demand is high, but now that the program will be promoted on the NOMIS Project homepage, the Legal Professions Division is gearing up for an additional influx of requests,” he says.

“We’re literally calling medical examiners and investigators all over the country to recruit adjunct instructors to teach this fall’s online courses,” Graham adds. “I’ve even spoken to a forensic pathologist in Great Britain.”

“Del Mar College is the only institution of higher education that offers a degree program in Death Investigation,” notes Graham. “Combined with the national deployment of NOMIS, the number of requests for this degree are probably going to be beyond our immediate ability to respond. What a wonderful problem to have.”


###


Sidebar Story:


Death Investigation Student Currently Working in Field
Director of Morgue Services with Nueces County Medical Examiners Office close to finishing program

She only lacks taking five classes to complete Del Mar College’s Death Investigation Program. But as Alex Medina puts it, “The field is not for everyone.”

“You don’t know what work is going to be like from one day to the next,” says Medina, a criminal justice and death investigations major and the director of morgue services at the Nueces County Medical Examiners Office. “You deal with death every day, and you see people you have known, friends or someone you went to school with. You just don’t know who you’ll see until you pull the cover back.”
The Corpus Christi native enrolled in Death Investigations courses when the College’s Department of Legal Professions began offering the program in fall 2001. Medina says her extensive experience in healthcare, including clinical, administrative and emergency services have been beneficial as she’s worked through the program.

“I enrolled in the Death Investigation Program during its infancy,” she notes. “But the program is expanding and is great for students here in Corpus Christi.” She notes that the high employment demand in the field means graduates have opportunities to find positions all over the country.

Prior to returning to Corpus Christi three years ago, Medina joined the U.S. Navy and began serving as a corpsman and EMT (emergency medical technician) in 1987. The 34-year-old is a nationally registered EMT, a certified medical assistant and a licensed ambulance driver.

But, Medina’s fascination with forensics and work with several pathology groups over the years spurned her interest to enroll in the Death Investigation Program when she decided to go back to college. “I started taking 22 to 26 credit hours when I enrolled,” she says. “I also wanted to get my foot in the door and made myself known to Ric Ortiz, who’s the chief investigator in the county’s Medical Examiners Office and was one of the first adjunct instructors to teach courses in the new program.”

“During class tours of the facility, I made a point of meeting the forensic staff and kind of pushed my way in here,” she muses. “When a position became available, I applied for it and went through the same process as the other candidates. But my education and work experience was key to my getting the position.”

Medina says death investigations is very demanding--physically and psychologically. “People are fascinated as to why I chose this field, but I believe I am where I’m suppose to be at this time in my life. I find the work intriguing. It’s like solving a puzzle.”

She adds, “This field requires special people who can find the answers as to why or how someone died.”


-DMC-me

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