Southwestern Bell Telephone Company v. David Garza

IN THE SUPREME COURT OF TEXAS

IN THE SUPREME COURT OF TEXAS

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No. 01-1142

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Southwestern Bell Telephone

Co., Petitioner,

v.

David Garza, Respondent

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On Petition for Review from the

Court of Appeals for the Thirteenth District

of Texas

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Argued

October 15, 2003

Justice Hecht

delivered the opinion of the Court, in which CHIEF JUSTICE JEFFERSON, JUSTICE

OWEN, JUSTICE SMITH, JUSTICE WAINWRIGHT, JUSTICE BRISTER, AND

JUSTICE MEDINA joined.

Justice O’Neill

filed an opinion concurring only in the judgment.

This is an action for a violation of the

Anti-Retaliation Law, which states in part: “A person may not discharge or in

any other manner discriminate against an employee because the employee has

. . . filed a workers’ compensation claim in good faith . . . .” [1] As the case comes to us, there are three

principal issues. First: in charging the

jury on liability, did the trial court err in deviating from the statutory

language? Second: is there some evidence

to support the jury’s finding of a statutory violation? Third: is there clear and convincing evidence

to support the jury’s award of punitive damages? For this last issue, we adopt the rule stated

in In re J.F.C. , [2]

that in reviewing the legal sufficiency of evidence to support a finding that

must be proved by clear and convincing evidence, an appellate court must “look

at all the evidence in the light most favorable to the finding to determine

whether a reasonable trier of fact could have formed

a firm belief or conviction that its finding was true.” [3] By this standard of review, the punitive

damages award here must be reversed. In

all other respects we affirm the judgment of the court of appeals. [4]

I

David Garza and Luis Hernandez, two Southwestern

Bell Telephone Co. ( A SWBT”)

linemen with a long history of friction working together, were hanging cable on

telephone poles in Harlingen on

Thursday morning, October

20, 1994. No one else was

present. Hernandez was working at the

top of the poles from an aerial platform or “bucket” hoisted on the arm of a

truck-mounted hydraulic lift. Garza was

working on the ground. At one point,

Hernandez dropped a rope with heavy metal hooks, narrowly missing Garza, who

said nothing. A few minutes later,

Hernandez lowered the bucket near where Garza had crouched down to cut a strand

of wire used to hold the cable on the poles.

It is not clear whether the bucket was lowered until it struck Garza in

the head where he was, or whether he stood up and bumped his head on the

bucket. What is clear is that Garza was

very angry with Hernandez for moving the bucket so close, and hot words were

exchanged. According to Hernandez, Garza

also threw the strand of wire at him but hit the bucket.

Hernandez immediately left the job site and drove

to the office of their “second-line” supervisor, Ruben Gonzalez, to complain of

Garza’s actions. Garza tried to call

Rene Robles, the two linemen’s direct, “first-line” supervisor, and then called

Gonzalez, who sent another employee to bring Garza to the office. Gonzalez took written statements from both

men and then interviewed them separately, asking Diana Vasquez, then vice

president of the local union, to sit in and take notes. From her notes, it appears that Hernandez

insisted that Garza be fired for threatening violence, but Gonzalez responded

that Hernandez should see the company counselor “and get it off your

chest”. Vasquez’s notes also reflect

that Garza, in turn, complained that Hernandez was unsafe to work with, and

that while Gonzalez agreed at least Hernandez had acted unsafely that morning,

he stressed that Hernandez’s actions were no excuse for Garza’s threats or

violence. At one point, according to

Vasquez’s notes, Gonzalez said, “David, all my life I have been fighting

bullies.” When Garza asked if that meant

Gonzalez thought he was a bully, Gonzalez answered no but added, “[ i ]f you tell me you are going to kick my butt,” “people can

perceive it as a threat.” Gonzalez

finished by telling Garza that he and Hernandez could no longer work together

and that he, too, should meet with the company counselor.

Garza did not complain of injury or request

medical treatment until the following Monday, October 24, when he told Robles

he had neck pains. Robles prepared a

workers’ compensation injury report form and took Garza to a doctor, who

diagnosed muscle spasms and prescribed medication. The visit and medication cost $640.77, and

Garza required no further medical attention.

SWBT contends

in part that a decision to discipline Garza was made before Monday and thus

could not have been in response to his compensation claim. The preceding Thursday, the day of the

incident, after Hernandez and Garza had left Gonzalez’s office, Gonzalez and

Robles discussed what had happened. Both

testified they knew that Garza, although a good worker, had earned a very poor

safety record over the twenty years he had worked for SWBT,

one of the worst Robles had seen among the employees who had worked for

him. SWBT ’s files

showed that Garza had been warned following a motor vehicle accident in 1987

“that his safety record was terrible and that a future accident of any nature,

be it his fault or not, could result in his being taken off the payroll”. Company files also showed that two years later,

after another motor vehicle accident, Garza had been cautioned again that “if

another problem arises that requires disciplinary action, you will be subject

to termination.” But Garza’s record did

not reflect an accident of any kind in the prior 27 months, and his 1993

performance appraisal on safety had rated him “satisfactory”. On July 22, 1994, barely three months earlier, Robles had

written Garza: “You made a commitment to be safe on the job and you did a good

job. Keep up the good work.”

Nevertheless, at trial Robles testified that on

the day of the incident he recommended to Gonzalez that Garza be disqualified

from driving or working on outside jobs because “[h]e was either going to end

up killing himself or killing his partner or injuring the public.” Gonzalez testified that he agreed and

telephoned his superior in San Antonio,

Wayne Rider, to report on the day’s events.

According to Gonzalez’s and Rider’s accounts of their conversation,

Gonzalez told Rider he had had a long-term problem with Garza and was “fed up”

with all of Garza’s problems. Garza, he

said, should no longer be allowed to drive.

Although Rider supervised some 500 employees, he knew Garza from his

poor safety record and told Gonzalez to put his recommendation in writing. Rider instructed Gonzalez to inquire whether

Garza had threatened other employees and to request a manager outside the area

to conduct an impartial investigation of the incident. But these steps, Rider testified, were “just

kind of like making sure, dotting the i’s and

crossing the t’s , so to speak.” The decision to disqualify Garza from driving

or working outside, he said, “was made on basically the 20th” and the next day,

before Garza’s worker’s compensation claim of injury the following Monday, and

“everything that happened after that was just window dressing”.

Rider’s testimony is somewhat at odds with other

evidence. For one thing, he also

testified that he did not make a final decision for some two weeks. For another, if a decision was made Thursday,

it was not immediately implemented. After meeting with Gonzalez, Garza was sent

to finish the job he and Hernandez had been working on, assisted by another

employee. On Friday and Saturday, Robles

continued to assign Garza other outside work because, he later testified, “[m]y

boss [Gonzalez] had not given me any other direction”, despite their

conversation on Thursday. Meanwhile, Hernandez was given work cleaning out

trucks.

Most inconsistent with Rider’s testimony are the

first three written reports of the Thursday incident, none of which reflected

that Garza would or should be disciplined.

On Tuesday or Wednesday, October 25 or 26, Robles telephoned Rider’s

clerk to provide her information for a standard form “flash report”. The report she prepared stated that no

investigation committee would be appointed and that the only action proposed to

be taken was “positive discipline”.

Robles testified that he did not give the clerk this information, but

Rider testified that the clerk would have completed the report as she was told,

so that even if she added anything herself, it would only have been more than,

not contrary to, what Robles told her.

About the same time, Gonzalez prepared his own

report. The report stated that Gonzalez

had interviewed Garza’s fellow employees as Rider had instructed, and that the

nine who were contacted “stated they have never seen David threaten

anyone.” Gonzalez’s report concluded:

Because there [were] no witnesses to the incident and both

employees have a history of not getting along with each other and submitted conflicting

stories, it is impossible to substantiate the exact events of this incident.

As a result of my investigation, I feel that both employees

contributed to this confrontation and both of them should be placed on a step

of positive discipline for effectiveness [with] others and be reminded that

they must learn to work with each other in the future.

Gonzalez’s report, it should be noted, was entirely consistent

with the “flash report”, including the parts Robles disavowed, and inconsistent

with the decision the two claimed to have reached the day of the accident C to disqualify Garza from driving or

outdoor work.

Contrary to one statement in the “flash report”,

Gonzalez did ask another manager to form a committee to investigate the

incident, again as Rider had instructed.

The committee of five made its report on October 27. The exact cause of the accident, they found,

could not be determined because Garza and Hernandez were the only witnesses,

both were reasonably credible, and their accounts differed. The committee found that both had acted

unsafely, faulting Garza for continuing to work beneath the bucket after almost

being hit by the rope Hernandez dropped and for not pointing out to Hernandez

that he’d dropped it. The committee

concluded that both employees should have communicated better and been more

careful working with the aerial bucket.

The committee’s only recommendations were that both employees receive

further training in safety procedures and guidance in communication with

others.

The first hint in SWBT ’s records

that Garza would be more severely disciplined came in notations Rider added to

Gonzalez’s “flash report” several days after Garza’s compensation claim. In the space where the report asked whether

an investigation committee would be appointed, he bracketed the typewritten

“no” and wrote, “yes”. Where the report

called for an explanation of action to be taken, Rider wrote: “accident will be

investigated, and if employee contributed to the cause of the accident,

disciplinary action will be initiated.”

He then struck out all but the first four words and added instead:

“Disciplinary action will be administered after investigation”.

On November 7, Gonzalez sent Rider a report far

different from his report ten days earlier.

It began:

This is David’s tenth recorded accident. The Investigating Committee found fault with

both participants, but could not determine the exact cause because of the

different versions the employees gave.

Irregardless of the discrepancies, the accident did occur and David was

hurt. We can no longer tolerate or

should accept this kind of disregard towards safety by an employee.

The memorandum cited ten accidents in which Garza had been

involved C five

involving motor vehicles (1979: rear-ended a vehicle; 1980: was struck by a

vehicle that failed to yield; 1986: backed into a vehicle; 1989: hit a fire

hydrant; 1992: pole on trailer hit windshield of an occupied vehicle), and five

requiring medical treatment (1978: stepped on a nail; 1979: strained shoulder lifting

a manhole cover; 1981: slipped and fell in mud, spraining right knee; 1982:

slid down a pole and got splinters in his chest; 1994: the incident with

Hernandez). The report also listed eight

other “miscellaneous occurrences” of unsafe conduct, from dropping a piece of

cable on a parked car to allowing his foot to slip off the clutch of his

truck. The report made no attempt to

assess the seriousness of the accidents or the degree to which Garza had been

at fault in any of them. It noted that

his performance rating for safety had been “unsatisfactory” for five out of the

twenty years Garza had been employed by SWBT

without noting his ratings for the other fifteen years. It listed four instances of disciplinary

action, all minor C one

suspension for several hours, and three reminders to be more careful. The report then concluded:

While this accident did not cause major harm or damage, it is

another indicator of David’s unconcern towards safety and a warning of further accidents

which could cause greater harm or damage.

David will not admit to having a safety problem regardless of all the

accidents and incidents, because to David, it is always the other person’s

fault. He will never change his unsafe

behavior.

The company has given David many chances over the years to

change his behavior. Positive

discipline, training and numerous sessions between management and the local

union to help him have not been successful.

We have no other alternative but to take David off his present

assignment. I recommend we give him 90

days to find an inside job with the company and be removed from his present job

assignment. David is a hard worker and

deserves the opportunity.

Rider approved Gonzalez’s November 7 report the

same day. When Gonzalez was asked at

trial to explain why he had changed positions so drastically from his first

report some ten days earlier, he cited only the committee investigation and

Garza’s safety record. But the committee

investigation had concluded that fault could not be determined and therefore

did not recommend serious discipline, and Gonzalez testified that he was well

aware of Garza’s safety record before October 20, the day of the accident. The record simply does not explain why

Gonzalez changed positions. Gonzalez’s

explanations at trial for not recommending that Hernandez be disciplined were

that his safety record was not as bad as Garza’s, and that shortly after the

accident he was no longer under Gonzalez’s supervision, although neither was

Garza.

Amidst these events, and unrelated to them,

Garza’s and Hernandez’s jobs at SWBT ’s Brownsville

office were declared to be “surplus” and transferred to Harlingen. SWBT vice

president and general manager, J. W. Galloway, stated in an October 26 memo

announcing the decision that both men would be given the opportunity to work

out of Harlingen. Nothing in the record reflects that Galloway

was aware of Garza’s October 20 accident or October 24 medical treatment. On November 7, the same day Rider approved Gonzalez’s

second report, Garza applied for a transfer.

The following day, Gonzalez and Robles met with Garza to tell him that

because of his safety record and the October 20 accident, he could no longer

work as a lineman or drive a company vehicle.

But the very next day, Robles signed off on Garza’s transfer

application, giving him a job performance rating of “satisfactory” for

safety. Robles testified that he simply

copied the ratings from Garza’s last job performance review some months

earlier.

SWBT ’s written policies regarding driving and safety did not

require the discipline imposed on Garza (although neither did they forbid it),

and the local union lodged a grievance.

A meeting was convened on November 14 to determine whether Garza’s

October 20 injury was his own fault.

Dennis Dobbs, the local union president, and Vasquez, its vice

president, attended the hearing along with Garza, Gonzalez, and Robles. Vasquez and Dobbs took notes. At trial five years later, Vasquez (who by

then had left the union for a SWBT

management position) testified from her notes that Gonzalez had told Garza “the

fact that he had gone to the doctor” had “caused this investigation and this

action to take place”. Gonzalez

testified that he did not recall making the statement, but that if he did, he

meant only that absent a request for medical treatment, the accident would not

have been “reportable” and would not have resulted in an investigation,

discipline, and the consequent union complaint.

Gonzalez provided copies of the reports that had been generated after

the October 20 accident, and the meeting was recessed to give Garza and the

union representatives time to review them.

The meeting reconvened November 30, this time with

Rider and Robles present, along with Garza, Dobbs, and Vasquez. Dobbs and Vasquez again took notes. At trial, Vasquez testified as follows:

Q: What do you recall

happening that surprised you?

A: The fact that David was

told he was the best employee they had ever had and that if it hadn’t been for

him going to the doctor he wouldn’t be sitting there with him being in this

position of getting a non-driving job.

Q: Have you ever heard

management ever say anything like that before?

A: No.

Q: What C how did

you feel about that?

A: I was in shock. It was a real surprise to me.

Vasquez could not recall for certain who made the statement,

although she believed it was Rider.

Dobbs, who remembered the same statement, testified that it was made by

Rider.

On December 28, Garza, Dobbs, and Vasquez met with

SWBT ’s human resources director, whose job it was to review

grievances. Again according to Vasquez’s

notes, Dobbs began by recounting the circumstances leading to Garza’s

discipline and specifically stated that Rider had said earlier, “if David would

not hv gone to Dr nothing would have been done.” Rider testified at trial that he did not make

the statement Vasquez and Dobbs attributed to him but instead said, as

reflected in Dobbs’s notes, that “[w]hat caused [10/20] to be a reportable

accident is that DG went to the Dr, recvd a

prescription for meds and had the Rx filled.”

This statement, Rider explained, was true; OSHA regulations made such an

accident “reportable”. But, he

contended, his statement was not intended to, and did not, say that the reason

Garza was being disciplined was because he had sought medical treatment.

Garza was willing to work out of Harlingen

or any other Valley locale, but after November 8 he was disqualified from

working as a lineman. SWBT

at first gave him until December 30 to find an inside job with SWBT

or face termination, and later it extended the deadline to

January 31. In the meantime, Garza

was assigned work around the Brownsville

office stocking materials in the yard and storeroom, work he regarded as

demeaning and “janitorial”. The work did

not include things like mopping and cleaning, which SWBT

contracted with others to do. Garza was

also allowed to spend much of his workday studying in the library to qualify

for other company positions. He tested

for other jobs but did not qualify. He

was offered a job in San Antonio at

less pay, but he was not willing to move away from the Valley because his wife

could not leave her job and his ailing father lived with them. Finally, on January 31, Garza was

terminated.

After Garza left SWBT,

Rider encouraged him to continue to do lineman work for SWBT

as an independent contractor and even offered to help him secure a small

business loan to go into business for himself.

Garza did take other jobs as a lineman and contractor, often working for

SWBT, sometimes doing much of the same work

he had before.

In July 1996, Garza sued SWBT. Three years later, the case was tried before

a jury, which found that SWBT C

disqualif [ ied ] or discharge[d] David Garza

from his Outside Plant Technician (OSPT) position because he instituted or

caused to be instituted a worker’s compensation claim in good faith.

The jury was instructed in this regard that:

There may be more than one

cause for an employment decision. An

employer does not disqualify or discharge an employee for instituting or

causing to be instituted a worker’s compensation claim in good faith, if the

employer would have disqualified or discharged him when it did even if the

employee had not instituted or caused to be instituted a worker’s compensation

claim in good faith.

The jury found actual damages totaling $1,034,108 [5]

and assessed exemplary damages of $1,000,000.

The trial court rendered judgment against SWBT

on the verdict, plus prejudgment interest, for $2,170,841.64. The court of appeals affirmed. [6]

We granted SWBT ’s petition for review. [7] SWBT

complains of error in the jury charge and of the legal sufficiency of evidence

to support liability, and alternatively, the award of exemplary damages. We examine each in turn.

II

We begin with the jury charge. As we noted at the outset, the

Anti-Retaliation Law states:

A person may not discharge or in any other manner discriminate

against an employee because the employee has . . . filed a workers’

compensation claim in good faith . . . . [8]

The trial court inquired of the jury:

Did [ SWBT ] disqualify

or discharge David Garza from his Outside Plant Technician (OSPT) position

because he instituted or caused to be instituted a worker’s compensation claim

in good faith?

(Emphasis added.) SWBT

argues, for three reasons, that the trial court’s substitution of “disqualify”

for “discriminate” was harmful error.

First, SWBT

argues that it was entitled to have the question of its statutory liability

submitted in the words of the statute. SWBT

is correct that, as a rule, “[w]hen liability is asserted based upon a

provision of a statute or regulation, a jury charge should track the language

of the provision as closely as possible.” [9] Certainly, “disqualify” and “discriminate”

are not synonyms. But Garza responds

that the charge merely specified the nature of the alleged discrimination, as

encouraged by the Texas Pattern Jury Charges , which suggests the

following question in this type of case:

Did Don Davis [ discharge

or (describe other discriminatory action) ] Paul Payne because he

[ filed a worker’s compensation claim in good faith . . .]? [10]

SWBT reads this suggestion not

to dispense with the statutory language but only to focus it, such as by a

question like this:

Did Don Davis discriminate

against Paul Payne by reassigning him to a lower-paying job

classification because he filed a worker’s compensation claim in good faith?

On the other hand, SWBT

argues, if this reading is incorrect and the pattern jury question does allow

omission of the statutory language, then it is improper. While it may be useful to draw the jury’s

attention to the particular misconduct alleged in the case, SWBT

continues, to omit the operative statutory words is to deprive the jury of the

legal lens through which the misconduct must be viewed, as by asking a jury

only whether the defendant turned right instead of whether turning right, if it

happened, was negligent. Discrimination

means treating similarly situated persons differently; to determine whether it

has occurred requires a comparison between the plaintiff and others like

him. To determine whether

disqualification has occurred requires no such comparison. In essence, SWBT

argues, the trial court incorrectly equated disqualification with

discrimination. Garza answers that in

this case, at least, there was no difference between asking the jury whether he

was disqualified for filing a compensation claim and asking whether he was

discriminated against by being disqualified for filing a compensation claim.

We agree with Garza. His disqualification was unquestionably

disciplinary, and if it was imposed because Garza filed a compensation claim,

as the jury found, and not because of the October 20 accident and Garza’s

safety record, as SWBT contended, then it

clearly violated the Anti-Retaliation Law.

The jury charge would have been more accurate had it asked whether SWBT

discriminated against Garza for filing a compensation claim by disqualifying

him from his position, retaining the statutory term while focusing on Garza’s

claim, but we do not think it reasonable to conclude that the jury was in any

important way confused by the question it was asked.

Next, SWBT

argues that Garza pleaded only unlawful discharge, not discrimination. Garza pleaded that SWBT

“embarked upon a plan to terminate his employment” and that he suffered damages

as a “consequence of the unlawful termination” or “retaliatory discharge”. SWBT

contends that Garza recognized the deficiency in his pleadings by moving, after

the verdict, to amend his pleadings to allege discrimination. But Garza also pleaded that “[ i ]n retaliation for filing” a compensation claim, he was

“ordered to find a non-driving position” and was thereby “effectively

disqualified from his job”. He sought

damages for “retaliatory discharge under the Texas Workers’ Compensation Act

and wrongful conduct” of SWBT. While Garza’s pleadings did not use the word

“discrimination”, they were nevertheless sufficient to raise that charge if

they gave fair notice of the facts on which Garza based his action sufficient

to allow SWBT to anticipate what evidence

would be relevant and to prepare its defense. [11] We think Garza’s pleadings clearly met this

standard. Had SWBT

been in doubt about Garza’s claims, it could have sought clarification through

special exceptions. It did not do so.

Finally, SWBT

argues that nearly half of the damages Garza recovered C

for past and future lost earnings and benefits C

resulted not from any discrimination against him but from his termination. SWBT

contends that Garza’s discharge resulted from the “surplus” determination

unrelated to his accident and compensation claim. But the “surplus” determination expressly

contemplated that Garza could transfer to Harlingen

and work at the same position. What kept

him from doing so was his disqualification.

SWBT ’s argument simply rejects Garza’s assertion that because

he filed a compensation claim, he was disqualified from his position and could

not find another. Having agreed with

Garza, the jury could find that the lost earnings and benefits resulted from

his disqualification.

Accordingly, we reject SWBT ’s

complaint of reversible error in the jury charge.

III

SWBT

next complains that there was no evidence to support the jury’s finding of

liability. Rather, SWBT

contends, the evidence establishes that it would have disciplined Garza as it

did even if he had not filed a compensation claim.

SWBT has

essentially two arguments. One is that

the decision to discipline Garza was made on Thursday, the day of the accident,

or perhaps the next day, but in any event before his compensation claim the

following Monday. But as recited above, SWBT ’s own

records can fairly be read to the contrary.

For example, Gonzalez, who was involved in the decision to disqualify

Garza, recommended in a written report a day or two after the compensation

claim that Garza be given only “positive discipline”. SWBT ’s other argument is that it disqualified Garza because of

his extraordinarily poor safety record, having specifically warned him in the

past that such action might be necessary.

Again, there is evidence in SWBT ’s records to the contrary.

For example, in the report just mentioned, made after the compensation

claim, Gonzalez did not cite Garza’s safety record as a basis for discipline

even though Gonzalez testified he knew of Garza’s safety record the day of the

accident. Rather, he concluded that

discipline should be limited because Garza’s fault in the Thursday accident

could not be determined. Not until his

report a week later did Gonzalez cite Garza’s poor safety record as a basis for

severe discipline.

SWBT notes that

there is no evidence that it discouraged compensation claims, but there is

evidence that it disciplined Garza, who made a claim, more severely than it

disciplined Hernandez, who did not. SWBT

explains that Hernandez’s safety record was better than Garza’s, but the jury

was not required to accept that explanation.

SWBT acknowledges that its written

safety policies did not require Garza’s disqualification, but neither, it

points out, did those policies preclude disqualification. Again, SWBT ’s position for going beyond its written policies is not

one the jury was required to accept.

Vasquez, the union vice president who had moved to management by the

time of trial, testified that she was shocked and surprised by a statement made

during the grievance meetings by one of Garza’s superiors that seemed to

connect his discipline with his compensation claim. Dobbs, the union president, supported

Vasquez’s testimony. SWBT

argues that it was Garza’s injury, not his claim, that precipitated the

investigations and disciplinary decision, but the jury was free to believe

Vasquez and Dobbs. The jury might also

have discounted SWBT ’s professed concerns for Garza’s carelessness when it

heard Rider testify that he encouraged Garza to continue doing the same work

for SWBT after his termination, as a private

contractor.

From this and the other evidence we have detailed

above, we have little difficulty rejecting SWBT ’s argument that the jury’s liability finding lacks support

in the record.

IV

Finally, SWBT

argues that there was no evidence to support the jury’s finding of actual

malice as a predicate to an award of punitive damages. The jury was asked and instructed as follows:

Do you find by clear and

convincing evidence that the harm to David Garza resulted from actual malice on

the part of [ SWBT ]?

A Clear

and convincing evidence” means the measure or degree of proof that produces a

firm belief or conviction of the truth of the allegations sought to be

established.

A Actual

malice” means ill will, spite, evil motive, or purpose to injure another.

Neither SWBT nor Garza

objected to this question or these instructions. Both concede that proof of actual malice was

required to recover punitive damages for a violation of the Anti-Retaliation

Law, [12]

that actual malice was correctly defined, [13]

that proof was required to be by clear and convincing evidence, [14]

and that “clear and convincing evidence was correctly defined”. [15] In assessing the evidence, we assume that the

portions of the charge just quoted, because they were given without objection,

correctly state the law. [16]

A

We must first determine the standard of review. The question is whether an elevated standard

of proof at trial C here,

clear and convincing evidence C

requires a correspondingly elevated standard of evidentiary review on

appeal. More specifically: will anything

more than a scintilla of probative evidence C

evidence “that would enable reasonable and fair-minded people to differ in

their conclusions” C support

a verdict of actual malice, as it would if proof at trial were by a

preponderance of the evidence, [17]

or must there be more C

must there be some evidence that produces a firm belief or conviction of the

truth of the allegation, since that was the “clear and convincing” standard of

proof the jury was required to apply?

The court of appeals did not discuss the issue and applied the ordinary

standard of review. [18] SWBT

argues that an elevated standard must be applied. Garza’s position is not clear.

The question must be answered in the context of

the distinction, perhaps more deeply engrained in Texas

law than in that of any other jurisdiction, between no evidence and

insufficient evidence. [19] The hardiness of this distinction in our

jurisprudence, if not its very existence, derives from a clause included in the

1891 amendments to Article V of the Texas Constitution, [20]

amendments that gave the Texas

judiciary its present structure. [21] Section 6 created courts of civil appeals and

provided that “the decision of said courts shall be conclusive on all questions

of fact brought before them on appeal or error.” [22] History provides no clear indication of the

framers’ purpose in including this “factual conclusivity

clause” or the ratifiers ’ purpose in adopting it. [23] Since one overall purpose of the amendments

was to reduce this Court’s workload, the clause may have been intended to help

achieve that end, merely as a practical matter. [24] More philosophically, it has been suggested

that in restructuring the judiciary, the framers may have come to believe that

one appeal regarding case-specific factual issues was enough, while a second

appeal regarding generally applicable legal issues was necessary to assure

uniform development of the law throughout the State. [25] Whatever its purpose, the clause was not a

conveyance of new authority to appellate courts. The year before the amendments were adopted,

this Court had asserted:

Although this court has the power to review a case upon the

facts, and to set aside a verdict which has evidence to support it, that power

has been reluctantly exercised. But it

is the right and duty of the court to set aside a verdict, when it is against

such a preponderance of the evidence, that it is clearly wrong.” [26]

Rather, the “factual conclusivity

clause” confined this one part of the appellate function C determining whether a judgment has sufficient

evidentiary support C

to the courts of civil appeals, now the courts of appeals. [27] The clause did not affect this Court’s power

to determine whether a judgment has any evidentiary support. As we explained not long after the amendments

took effect:

it is elementary that whether there be any evidence or not to

support an issue is a question of law, and not of fact, and it follows that the

decision of the court of civil appeals upon such a question is subject to

review by this court. [28]

Based on this statement, no evidence is sometimes referred to as

being legally insufficient, the issue being one of law, while evidence so

against the preponderance of other evidence that the judgment it supports is

clearly wrong is sometimes referred to as being factually insufficient. The use of the word “insufficient” in both

contexts has compounded confusion over the distinction. [29]

While the “factual conclusivity

clause” requires that a distinction be made between questions of fact and

questions of law, it does not prescribe where the line is to be drawn, leaving

that matter for this Court. Over the

years, we have concluded that no evidence means not only a complete absence of

evidence but also evidence which cannot be given legal effect, either because

the law does not permit it or because the evidence is too weak. [30] To define evidence that is too weak to be

given legal effect, we have adopted the “scintilla” rule. As Chief Justice Calvert explained in his

seminal article on the subject:

The scintilla rule,

although having its origin at a much earlier date, was firmed up in Texas in Joske v. Irvine

[ 44 S.W. 1059 ( Tex. 1898)]. The rule may

be stated in these words: when the evidence offered to prove a vital fact is so

weak as to do no more than create a mere surmise or suspicion of its existence,

the evidence is, in legal effect, no evidence, and will not support a verdict

or judgment. [31]

In other words, evidence which does no more than create a mere

surmise or suspicion cannot prove the truth of an allegation. The rule works in tandem with the

preponderance-of-the-evidence standard of proof: any evidence that does not

merely create surmise or suspicion can be used to show that something is more

likely than not. But when proof of an

allegation must be clear and convincing, even evidence that does more than

raise surmise and suspicion will not suffice unless it is capable of producing

a firm belief or conviction that the allegation is true. Evidence of lesser quality is, in legal effect,

no evidence. Whether evidence is of such

quality is thus a question of law in a case with that elevated standard of

proof, just as whether evidence is more than a scintilla is a question of law

in a case proved by a preponderance of the evidence.

In reviewing a finding that must be proved by

clear and convincing evidence, it makes no sense for an appellate court to

determine whether the supporting evidence amounts to more than a

scintilla. Even if it does, the finding

is invalid unless the evidence is also clear and convincing. In such a case, the review required by the

“scintilla” rule is wholly irrelevant and thus, no review at all. Thus, as a matter of logic, a finding that

must meet an elevated standard of proof must also meet an elevated standard of

review.

We reached essentially the same conclusion in In re C.H. [32]

and In re J.F.C. , [33]

two cases involving the termination of parental rights. Because “[t]he natural right which exists

between parents and their children is one of constitutional dimensions”, [34]

we had previously held that it could be terminated only on clear and convincing

evidence, [35]

and shortly afterward the United States Supreme Court [36]

and the Texas Legislature [37]

reached the same conclusion. The issues

in C.H. and J.F.C. were whether the higher proof standard

necessitated higher standards of factual sufficiency and legal sufficiency

review, respectively. In J.F.C.

we explained:

We held in In re C.H.

“that the appellate standard for reviewing termination findings is whether the

evidence is such that a factfinder could reasonably

form a firm belief or conviction about the truth of the State’s

allegations.” We expressly “reject[ed]

standards that retain the traditional factual sufficiency standard while

attempting to accommodate the clear‑and‑convincing burden of

proof.” We concluded that “the burden of

proof at trial necessarily affects appellate review of the evidence.” We explained:

Under traditional factual

sufficiency standards, a court determines if a finding is so against the great

weight and preponderance of the evidence that it is manifestly unjust, shocks

the conscience, or clearly demonstrates bias.

But that standard is inadequate when evidence is more than a

preponderance (more likely than not) but is not clear and convincing. As a matter of logic, a finding that must be

based on clear and convincing evidence cannot be viewed on appeal the same as

one that may be sustained on a mere preponderance.

The same logic dictates

the conclusion that our traditional legal sufficiency standard, which upholds a

finding supported by “[a] nything more than a

scintilla of evidence,” is inadequate when the United States Constitution

requires proof by clear and convincing evidence. Requiring only “[a] nything

more than” a mere scintilla of evidence does not equate to clear and convincing

evidence. [38]

Although the parental interest at issue was of constitutional

magnitude, and the standard of proof constitutionally prescribed, we did not

decide whether an elevated standard of review was likewise constitutionally

mandated but applied it purely as a “matter of logic”.

Similarly, the United States Supreme Court has

held in other contexts that when the standard of proof at trial is

constitutionally required to be more exacting, the standard of review on appeal

must be more exacting as well. In Jackson

v. Virginia , for example, the Court considered “what standard is to be

applied in a federal habeas corpus proceeding when the claim is made that a

person has been convicted in a state court upon insufficient evidence.” [39] Noting that “the Due Process Clause of the

Fourteenth Amendment protects a defendant in a criminal case against conviction

‘except upon proof beyond a reasonable doubt’” [40]

the Court concluded that this right could not adequately be protected by jury

instructions alone; [41]

evidentiary review was essential. [42] Nor would the ordinary standard of review

suffice:

A [A] mere

modicum of evidence may satisfy a ‘no evidence’ standard . . . .” Any evidence that is relevant C that has

any tendency to make the existence of an element of a crime slightly more

probable than it would be without the evidence C could be deemed a “mere modicum.” But it could not seriously be argued that

such a “modicum” of evidence could by itself rationally support a conviction

beyond a reasonable doubt. [43]

The elevated proof requirement necessitated a more exacting

standard of review:

the critical inquiry on review of the sufficiency of the

evidence to support a criminal conviction must be not simply to determine

whether the jury was properly instructed, but to determine whether the record

evidence could reasonably support a finding of guilt beyond a reasonable doubt. [44]

Texas courts use this same standard. [45] We relied on Jackson in J.F.C. :

The reasoning in Jackson

reinforces our conclusion that to apply our traditional no evidence standard of

review in a parental termination case would not afford the protections inherent

in the clear and convincing standard of proof.

As the example in Jackson highlights, a parent’s rights could be

terminated based on “but one slender bit of evidence” as long as the jury was

properly instructed on the clear and convincing evidence burden of proof. Our legal sufficiency review, therefore, must

take into consideration whether the evidence is such that a factfinder

could reasonably form a firm belief or conviction about the truth of the matter

on which the State bears the burden of proof. [46]

Likewise, the Supreme Court held in New York

Times Co. v. Sullivan that when proof of actual malice is required in

defamation cases, evidence of “convincing clarity” is required. [47] Further, appellate courts cannot use ordinary

standards of review but “must ‘make an independent examination of the whole

record,’ so as to assure [itself] that the judgment does not constitute a

forbidden intrusion on the field of free expression.” [48] Texas law adheres, of course, to both

requirements. [49]

In Jackson and in Sullivan , as in J.F.C.

and C.H. , the elevated standard of evidentiary review on appeal was not itself

an independent constitutional guarantee but was instead a necessary concomitant

to a constitutional right to proof by more than a preponderance of the

evidence. Whatever the source of a right

to an elevated standard of proof, whether by constitutional provision, by

federal [50]

or state [51]

statute, or by court decision, [52]

the problem of evidentiary review on appeal is the same: a finding that cannot

be made on evidence of lesser quality should not be affirmed on such evidence.

Three objections, primarily, are raised to the use

of an elevated standard of evidentiary review on appeal. None, we think, has merit. The first is that such a standard invites the

appellate court to weigh evidence and resolve issues of credibility, thus

invading the province of the jury. But

the required weighing of evidence is neither more nor different than that

involved in an ordinary factual sufficiency review; the only difference is that

a higher quality of evidence is necessary to tip the scales. Issues of credibility that depend on

appearance and demeanor cannot be weighed by the appellate court; the witnesses

are not present. And even when

credibility issues are reflected in the written transcript, the appellate court

must defer to the jury’s determinations, at least so long as those

determinations are not themselves unreasonable.

For example, the Supreme Court explained in Jackson that an

elevated standard of review C

does not require a court to “ask itself whether it

believes that the evidence at the trial established guilt beyond a reasonable

doubt.” Instead, the relevant question

is whether, after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt. This familiar standard gives full play to the

responsibility of the trier of fact fairly to resolve

conflicts in the testimony, to weigh the evidence, and to draw reasonable

inferences from basic facts to ultimate facts. Once a defendant has been found

guilty of the crime charged, the factfinder’s role as

weigher of the evidence is preserved through a legal

conclusion that upon judicial review all of the evidence is to be

considered in the light most favorable to the prosecution. The criterion thus impinges upon “jury”

discretion only to the extent necessary to guarantee the fundamental protection

of due process of law. [53]

Similarly, we held in J.F.C. and C.H. that an

appellate court must assume that the jury resolved evidentiary conflicts in

favor of its verdict if it reasonably could have done so. [54]

The second objection is that an elevated

no-evidence review standard is unnecessary because the appellate court can

assure adherence to the proof standard through a review of the sufficiency of

the evidence. Indeed, this Court has

occasionally said that “[t]he requirement of clear and convincing evidence is

merely another method of stating that a cause of action must be supported by

factually sufficient evidence”, [55]

although we have not said this in a case in which clear and convincing was a

requirement for proof at trial. [56]

The requirement that a jury use a heightened standard of proof is a relatively

recent phenomenon. [57] An insufficiency review cannot substitute for

a no-evidence review because the consequences are different. As a rule, if a party with the burden of

proof offers no evidence on an issue, the opposing party is entitled to

judgment. [58] If, however, there is some evidence to prove

an issue but that evidence is factually insufficient, the only remedy is a new

trial. [59] To police adherence to an elevated proof

standard solely through insufficiency review is to deny the remedy of rendition

to those whose interests deserve increased protection. This, of course, makes no sense.

Finally, even if Texas courts of appeals must use

an elevated standard of no-evidence review, objection is made to this Court’s

authority to do so, based on the “factual conclusivity

clause” of the Texas Constitution with which we began this discussion. But as we have explained, the “factual conclusivity clause” does not define the “questions of

fact” on which the courts of appeals’ decisions are conclusive. We held, shortly after the clause was

adopted, that “whether there be any evidence or not to support an issue is a

question of law, and not of fact”. [60] Evidence that does not produce a firm belief

or conviction does not support an issue that must be proved by clear and

convincing evidence. Whether evidence

supports an issue is no less a question of law simply because the standard of

proof is heightened. We essentially

reached this conclusion in defamation cases requiring proof of actual

malice. The Supreme Court has stated

that “[t]he question whether the evidence in the record in a defamation case is

sufficient to support a finding of actual malice is a question of law.” [61] We have agreed and treated the question as

such, [62]

although we might have concluded for purposes of the “factual conclusivity clause” that the question was one of fact

exclusively for the courts of appeals.

Such a conclusion would not have contradicted the Supreme Court but

would simply have assigned its required evidentiary review solely to our courts

of appeals. By undertaking the review

ourselves, we in effect determined that the required evidentiary review was

within our jurisdiction.

In sum, we think that whenever the standard of

proof at trial is elevated, the standard of appellate review must likewise be

elevated. Because the “clear and

convincing” standard of proof in this case is the same as in J.F.C. , we

follow the procedure outlined there for conducting a no-evidence review:

In a legal sufficiency review, a court should look at all the

evidence in the light most favorable to the finding to determine whether a

reasonable trier of fact could have formed a firm

belief or conviction that its finding was true.

To give appropriate deference to the factfinder’s

conclusions and the role of a court conducting a legal sufficiency review,

looking at the evidence in the light most favorable to the judgment means that

a reviewing court must assume that the factfinder

resolved disputed facts in favor of its finding if a reasonable factfinder could do so.

A corollary to this requirement is that a court should disregard all

evidence that a reasonable factfinder could have

disbelieved or found to have been incredible.

This does not mean that a court must disregard all evidence that does

not support the finding. Disregarding

undisputed facts that do not support the finding could skew the analysis of

whether there is clear and convincing evidence.

If, after conducting its

legal sufficiency review of the record evidence, a court determines that no

reasonable factfinder could form a firm belief or

conviction that the matter that must be proven is true, then that court must

conclude that the evidence is legally insufficient. [63]

We need not consider here whether a different procedure for

review (as opposed to the standard of review) of an award of punitive

damages is required by the United States Supreme Court’s recent decision in Cooper

Industries, Inc. v. Leatherman Tool Group . [64]

B

We

now turn to the evidence of actual malice C

that is, ill will, spite, evil motive, or purposeful injury. Garza complains mostly of Gonzalez and

Rider. SWBT

argues that neither was proved to be a vice-principal whose conduct can be

attributed to SWBT for the purpose of

awarding exemplary damages. We need not

reach this argument and assume for purposes of our analysis that Gonzalez and

Rider were vice principals.

Garza points to the following evidence:

$ Gonzalez

C

implied Garza was a bully; told Rider he had long-term problems with Garza and

was “fed up” while allowing Garza to return to outside work; went out of his

way to see that Garza was punished, even after Garza was no longer under his

supervision; distorted Garza’s safety record, blowing small incidents out of

proportion, even though Garza continued to be rated as satisfactory on safety

two days after discipline was imposed; gave Rider a second report that was a

diatribe against Garza;

$ Rider

C

admitted he was personally familiar with Garza, although he had some 500

employees under his supervision, and pressed for having Garza disciplined

without a determination that Garza was at fault in the accident with Hernandez;

severely disciplined Garza while calling him one of SWBT ’s

best linemen; faulted Garza’s safety record as a lineman but offered Garza the

same work as an independent contractor;

$ the

discipline imposed on Garza was not required by SWBT

policies;

$ the

union meetings following Garza’s discipline were a sham, or as Rider put it,

“window dressing”;

$ after

discipline was imposed, Garza was assigned demeaning work, humiliating him in

front of his co-workers;

$ Hernandez was not disciplined.

With this evidence, however, we must also consider

other evidence that was undisputed.

Garza unquestionably had a lengthy record of safety violations and had

been strictly warned twice before the October 20 accident that he could be

terminated for any further mishap, irrespective of fault. SWBT ’s investigation of the accident, which included a thorough

and impartial inquiry by a committee headed by an outside manager, resulted in

differences of opinion. Although not

required by SWBT policies, the discipline

imposed on Garza was not prohibited and was consistent with the warnings he had

previously received. The meetings with

union officials were at their behest, and SWBT

employees merely attended as requested. SWBT

gave Garza two months at first, and then an additonal

month, to relocate within the company, offering him the opportunity to use work

time to study in order to qualify for other positions. While Garza considered the shopwork to which he was assigned during that period

demeaning, it was not janitorial in the sense that it did not involve mopping

and cleaning. And Hernandez’s safety

record was not as poor as Garza’s.

Viewing all of this evidence C as well as the evidence we have

detailed earlier along with the entire record C

in the light most favorable to the verdict, we cannot conclude that a

reasonable trier of fact could form a firm belief or

conviction that SWBT acted toward Garza with

ill will, spite, evil motive, or purposeful injury. While there are some indications that it

might have done so, there are a great many others that it did not. At most, the record reflects that SWBT

mishandled the situation; it does not produce a reasonable conviction that SWBT

intended to punish Garza without cause.

Therefore, we conclude that there is no clear and

convincing evidence of actual malice to support an award of punitive damages.

C

The concurring opinion agrees that

an elevated standard of review must be applied, agrees that no evidence of

actual malice meets that standard, and then castigates the Court for

“impermissibly weigh[ ing ] conflicting evidence”. [65] The opinion gives only two examples.

First, the concurring opinion states that “the

jury could reasonably have inferred that Garza’s record was not as poor as SWBT

suggested”, implying that we disagree. [66] We do not.

We absolutely agree. But while

our review must acknowledge reasonable inferences that may have been drawn by

the jury, it cannot, under the procedures set out in J.F.C. , disregard

undisputed evidence. It is undisputed C not merely unchallenged, but

undisputed C that

Garza’s safety record was accurately reflected in his personnel file. Garza conceded at trial that every incident

for which he was cited actually occurred, and that on most occasions he was at

fault. He vigorously disputes that his

safety record justified, or was the actual reason for, the discipline he was

given, and the jury was certainly entitled to believe him. The standard of review requires us to credit

the jury’s reasonable inference, but it does not allow us to disregard the

undisputed fact that Garza’s record of safety violations was lengthy.

Next, the concurring opinion states that we

“suggest[] that SWBT actually aided Garza by

conducting a ‘thorough and impartial’ investigation.” [67] We suggest no such thing. We say only, as the concurring opinion does,

that “[s] ome parts of the investigation may indeed

have been impartial, and may even have favored Garza.” [68] We agree with the concurring opinion that the

jury may have believed that the investigation, as a whole, was not thorough and

impartial. Again, however, the standard

of review requires that we credit evidence the jury could have believed without

disregarding undisputed evidence.

We agree with the concurring opinion that the jury

could have believed: that SWBT overstated

the significance of Garza’s safety record, that the investigation was in large

part unfair, that Garza’s discipline was inconsistent with SWBT ’s written

policies, and that SWBT was insincere in

helping Garza qualify for other jobs with the company. But in determining whether there was any

clear and convincing evidence that SWBT

acted with actual malice, we must also consider the undisputed evidence that

Garza had a lengthy record of safety violations, overstated or not, that part

of the investigation was impartial and tended to exonerate Garza, that no

written company policy forbade the discipline Garza was given, and that Garza

was given the time and opportunity to qualify for another job, of which he has

never complained. This analysis, as we

have explained, is required by the elevated standard of proof and does not

transgress constitutional limits on our authority.

The concurring opinion cannot point to any

evidence or inference favorable to Garza that we have failed to consider. Without so much as a single example, the

concurring opinion accuses the Court of decision-making in excess of its

authority, then reaches exactly the same result we do. Its charges must be viewed in that light.

* * *

* *

Accordingly, the judgment of the

court of appeals is reversed insofar as it affirms the award of exemplary

damages, and in all other respects is affirmed.

Nathan L. Hecht

Justice

Opinion delivered: December 31, 2004

[1] Tex . Lab . Code § 451.001(1).

[2] 96 S.W.3d 256 , 264-268 ( Tex. 2002).

[3] Id. at 266.

[4] 58 S.W.3d 214 ( Tex. App. C Corpus Christi 2001).

[5] Past lost earnings of $129,538; past lost benefits of

$7,100; future lost earnings of $174,732; future lost benefits of $122,738; past

mental anguish of $300,000; future mental anguish of $300,000.

[6] 58 S.W.3d 214 ( Tex. App. C Corpus Christi 2001).

[7] 46 Tex. Sup. Ct. J. 776 ( June 12, 2003 ).

[8] Tex . Lab . Code § 451.001(1) (emphasis added).

[9] Spencer v. Eagle Star Ins. Co. of Am. , 876

S.W.2d 154, 157 ( Tex. 1994).

[10] Comm . on Pattern Jury Charges,

State Bar of Tex ., Texas Pattern Jury Charges C Business, Consumer,

Insurance, Employment PJC 107.5 (2003)

(italics, brackets, and parentheses in original).

[11] See Horizon/ CMS Healthcare Corp. v. Auld , 34 S.W.3d 887, 896-897 (Tex. 2000) ( A Texas follows a ‘fair notice’ standard for pleading,

which looks to whether the opposing party can ascertain from the pleading the

nature and basic issues of the controversy and what testimony will be relevant.

. . . ‘A petition is

sufficient if it gives fair and adequate notice of the facts upon which the

pleader bases his claim. The purpose of

this rule is to give the opposing party information sufficient to enable him to

prepare a defense.’ Roark v. Allen ,

633 S.W.2d 804, 810 ( Tex. 1982).”).

[12] Continental Coffee Prods. Co. v. Cazarez , 937 S.W.2d 444, 452-454, n.4 (Tex. 1996) (noting that the general

statutory requirement of proof of malice C not the

same as actual malice, required by the Court C as a

predicate to recovery of exemplary damages was expressly inapplicable to

actions brought under the workers’ compensation laws,a

restriction that has since been removed.

See Act of May 8, 1997 , 75th Leg., R.S., ch . 165, § 4.01, 1997

Tex. Gen. Laws 325 , 328, adopting amendment contained in Act of April

11, 1995 , 74th Leg., R.S., ch . 19, § 1, 1995 Tex. Gen. Laws 108 , 109, and not the

amendment contained in Act of May 27, 1995 , 74th Leg., R.S., ch . 260,

§ 9, 1995 Tex. Gen. Laws 2207 , 2473, in former Tex . Civ . Prac . & Rem. Code § 41.002(b)(3)).

[13] Id. ; cf. Tex . Civ . Prac . & Rem. Code § 41.001(7) (now defining “malice” C as distinct from actual malice C as a predicate for recovery of exemplary damages to

mean “a specific intent by the defendant to cause substantial injury or harm to

the claimant”).

[14] Cf. Act of April 11, 1995 , 74th Leg., R.S., ch . 19,

§§ 1-2, 1995 Tex. Gen. Laws 108, 109-110, 113 (adopting and defining

“clear and convincing evidence” standard, now codified as Tex . Civ . Prac . & Rem. Code §§ 41.001(2), 41.003(b); adopting and defining

“malice” standard, now codified as id. §§ 41.001(7), 41.003(a);

removing inapplicability of chapter 41

to actions under the workers’ compensation laws, formerly codified as id .

§ 41.002(b)(3); and providing: “This Act takes effect September

1, 1995 , and applies only to

a cause of action that accrues on or after that date. A suit filed before the effective date of

this Act is governed by the law applicable to the claim that existed

immediately before the effective date of this Act, and that law is continued in

effect for that purpose.”); Act of May 27, 1995 , 74th Leg., R.S., ch . 260,

§ 9, 1995 Tex. Gen. Laws 2207 , 2473 (amending but retaining provision

making chapter 41 inapplicable to actions under the workers’ compensation

laws); Act of May 8, 1997 , 75th Leg., R.S., ch . 165, § 4.01, 1997

Tex. Gen. Laws 325 , 328 (adopting amendment contained in Act of April

11, 1995 , 74th Leg., R.S., ch . 19, § 1, 1995 Tex. Gen. Laws 108 , 109, and not the

later amendment contained in Act of May 27, 1995 , 74th Leg., R.S., ch . 260,

§ 9, 1995 Tex. Gen. Laws 2207 , 2473).

[15] See State v. Addington ,

588 S.W.2d 569, 570 (Tex. 1979) (per curiam )

(defining “clear and convincing evidence” as “that measure or degree of proof

which will produce in the mind of the trier of fact a

firm belief or conviction as to the truth of the allegations sought to be

established”, following Addington v. Texas ,

441 U.S. 418 , 431‑32, (1979)).

[16] Wal-Mart Stores, Inc. v. Sturges ,

52 S.W.3d 711, 715 (Tex. 2001) (stating that the sufficiency of the evidence

must be assessed “in light of the jury charge the the

district court gave without objection”)(citing City of Fort Worth v. Zimlich , 29 S.W.3d 62, 71 (Tex. 2000), and Larson v.

Cook Consultants, Inc. , 690 S.W.2d 567, 568 (Tex. 1985)); Bradford v.

Vento , 48 S.W.3d 749, 754 (Tex. 2001) (same); Osterberg

v. Peca , 12 S.W.3d 31, 55 (Tex. 2000) (stating that “it is the court’s

charge, not some other unidentified law, that measures the sufficiency of the

evidence when the opposing party fails to object to the charge”).

[17] Transportation Ins. Co. v. Moriel ,

879 S.W.2d 10, 25 ( Tex. 1994); accord Merrell Dow Pharmaceuticals,

Inc. v. Havner , 953 S.W.2d 706, 711 ( Tex. 1997); Burroughs Wellcome

Co. v. Crye , 907 S.W.2d 497, 499 ( Tex. 1995).

[18] 58 S.W.3d at 227 ( A In

reviewing the evidence for legal sufficiency, we consider only the evidence and

inferences, viewed in their most favorable light, which support the jury’s

findings and disregard all evidence and inferences to the contrary. Anything more than a scintilla of evidence

that is more than a basis for mere surmise or suspicion is legally sufficient

to support the finding. If the evidence

provides a rational basis for reasonable minds to differ as to the existence of

a vital fact, there is some evidence or more than a scintilla.” (Citations omitted.)).

[19] See generally W. St. John Garwood, The Question of Insufficient Evidence on Appeal , 30 Tex . L. Rev . 803 (1952); Robert W. Calvert, “ No Evidence” and

“Insufficient Evidence” Points of Error , 38 Tex . L. Rev . 361 (1960); William Powers, Jr. & Jack Ratliff, Another

Look at “No Evidence” and “Insufficient Evidence” , 69 Tex . L. Rev . 515 (1991).

[20] Tex.

S.J. Res. 16, 22nd Leg, R.S., 1891 Tex. Gen. Laws 197 .

[21] See Garwood, supra note 19, 29, at 805

( A Prior to the [1891 constitutional amendments] the

distinction seems to have been rarely mentioned.”).

[22] Tex . Const. art. V, § 6.

[23] See Powers & Ratliff, supra note

19, at 540 ( A There is a paucity of evidence about the framers’

precise rationale for giving courts of appeals final authority over questions

of fact”).

[24] See 1

George D. Braden, et al., The Constitution of the State of Texas: An Annotated and Comparative Analysis 399 (1977) ( A The

courts of civil appeals were the major innovation of the 1891 reform

package. The supreme court was falling

so far behind that either the right to appeal had to be severely curtailed or

the system had to be radically revised. . . . The theory in creating the courts of civil

appeals apparently was that their decisions would be final in most civil

cases. The supreme court’s primary

function was to be the resolution of conflicts.”).

[25] See Powers & Ratliff, supra note

19, at 540 ( A Why should we give the supreme court jurisdiction over

questions of law C thereby giving litigants two levels of appeal C but not give it jurisdiction over questions of fact C thereby limiting litigants to only one level of

appeal? The reason, we suggest, is that

the supreme court needs jurisdiction over questions of law to insure uniformity

throughout the state, uniformity that is not as important on issues of fact

that are specific to a particular case.”).

[26] Missouri Pac. Ry . v. Somers , 14 S.W. 779, 779 ( Tex. 1890).

[27] Cropper v. Caterpillar Tractor Co. , 754 S.W.2d

646, 648 ( Tex. 1988) (stating that the Conclusivity

Clause “functions not as a grant of authority to the courts of appeals but as a

limitation upon the judicial authority of this court.”).

[28] Choate v. San Antonio & A.P. Ry . , 44 S.W. 69, 69 ( Tex. 1898); see also Muhle

v. New York, T. & M. Ry . , 25 S.W. 607, 608 ( Tex. 1894) (stating that “whether or not there was

evidence from which the jury might have [made a finding] is a question of law

which we are called upon to determine.”).

[29] See, e.g. Garwood, supra note 19, at

805 ( A [T]here still exists a modicum of confusion in the

profession about the difference between the so-called fact question of

‘insufficient’ evidence and the law question of ‘no’ evidence. Indeed, considering the matter on principle,

it is perhaps surprising that we do not have more confusion than we do; and I

sometimes wonder if there is much logical basis for the distinction. But . . . it is almost ‘hornbook

law’ in Texas that the distinction is recognized and has important

consequences.”); Calvert, supra note 19, at 359 ( A Expressions in points of error such as ‘no evidence,’

‘insufficient evidence,’ ‘no sufficient evidence,’ ‘no legally sufficient

evidence,’ ‘against the great weight of the evidence,’ ‘contrary to the

preponderance of the evidence,’ ad infinitum, have definite connotations in the

mind of an appellate judge, but, except in a very limited way, they are not, or

at least should not be, controlling.”).

[30] See Calvert, supra note 19, at 362-363

( A ‘No evidence’ points must, and may only, be sustained

when the record discloses one of the following situations: (a) a complete

absence of evidence of a vital fact; (b) the court is barred by rules of law or

of evidence from giving weight to the only evidence offered to prove a vital

fact; (c) the evidence offered to prove a vital fact is no more than a mere

scintilla; (d) the evidence establishes conclusively the opposite of the vital

fact.”).

[31] Calvert, supra note 19, at 363.

[32] 89 S.W.3d 17 ( Tex. 2002).

[33] 96 S.W.3d 256 ( Tex. 2002).

[34] Wiley v. Spratlan , 543

S.W.2d 349, 352 (Tex. 1976); accord , Stanley v. Illinois , 405

U.S. 645, 651 (1972) ( A The integrity of the family unit has found protection

in the Due Process Clause of the Fourteenth Amendment, the Equal Protection

Clause of the Fourteenth Amendment, and the Ninth Amendment.” (Citations omitted.)).

[35] In re G.M. , 596 S.W.2d 846, 847 ( Tex. 1980).

[36] Santosky v.

Kramer , 455 U.S. 745, 769 (1982).

[37] Act of Act of May 24, 1995 , 74th Leg., R.S., ch . 709,

§ 1, 1995 Tex. Gen. Laws 3745 , and Act of May 26, 1995 , 74th Leg., R.S., ch . 751,

§ 65, 1995 Tex. Gen. Laws 3910-3911, both amending Tex . Fam. Code § 161.001 (1), as added by Act of April

20, 1995 , 74th Leg., R.S., ch . 20, § 1, 1995 Tex. Gen. Laws 113 , 212 ( recodifying former Tex . Fam. Code § 11.15).

[38] 96 S.W.3d at 264-265 (footnotes and citation

omitted).

[39] 443 U.S. 307, 309 (1979).

[40] Id. at 315 (citation omitted).

[41] Id. at 316-317.

[42] Id. at 317-318.

[43] Id. at 320 (citations omitted).

[44] Id. at 318-319.

[45] Wilson v. State , 7 S.W.3d 136, 141 (Tex. Crim . App. 1999) ( A In

evaluating legal sufficiency, we must view the evidence in the light most

favorable to the verdict and determine whether any rational trier

of fact could have found the elements of the offense beyond a reasonable

doubt.”).

[46] 96 S.W.3d at 265-266.

[47] 376 U.S. 254, 285-286 (1964).

[48] Id. at 285 ; accord , Bose Corp. v.

Consumers Union , 466 U.S. 485, 511 (1984) (stating that appellate review

must determine whether the evidence is “sufficient to cross the constitutional

threshold that bars the entry of any judgment that is not supported by clear

and convincing proof of ‘actual malice.’“).

[49] Turner v. KTRK Television, Inc. , 38 S.W.3d

103, 119-120 ( Tex. 2000)

[50] See, e.g. , 20 U.S.C. § 6736 (c)(1)

(punitive damages for assault by teacher); 25 U.S.C. § 1912 (e) (foster

care for Indian children); 42 U.S.C. § 300aa B 22(b)(2)(B)

(liability for vaccine-related injuries); id. § 11603(e)(2)(A)

(remedy for international child abduction); id. § 14503(e) (punitive

damages for act of volunteer for non-profit agencies); 49 U.S.C.

§ 28103 (a)(1) (harm caused by rail carrier).

[51] See, e.g. , Tex . Civ . Prac . & Rem. Code § 18.033(c) (boundary disputes); id.

§ 41.003(a) (punitive damages); Tex . Fam. Code § 3.003(b)

( separate property); id. § 55.55(c ) (commitment of a mentally ill juvenile); id. § 159.401(b)(5)

(temporary child support order); id. § 160.608(d) (denial of motion

for genetic testing); id. § 160.624(a)(5) (temporary child support

order); id. § 161.001 (termination of parent-child relationship); id.

§ 161.003(a)(2) (finding that illness leaves parent unfit to care for

child); id. § 161.206(a) (order terminating parent-child

relationship); Tex . Health & Safety Code §§ 81.169(h), 81.171(a) (hearing on state’s

application for court order for management of a person with a communicable

disease); id. § 81.172(a) (order for temporary management of person

with a communicable disease); id. § 81.173(a) (order for extended

management of person with communicable disease); id. § 81.190(e),

(f) (reexamination of involuntary quarantine); id. §§ 314.002(d),

314.003(d), 314.006(b) (benefits resulting from cooperative hospital

agreement); id. §§ 462.067(d), 462.068(a),462.069(a)(2), 462.075(e)

(court-ordered substance abuse treatment); id. §§ 574.031(g),

574.033(a), 574.034(a) (court-ordered mental health services); id.

§ 574.035(a) (court-ordered extended mental health services); id.

§ 574.069(e) (reexamination of court order for mental health services); id.

§ 574.106(a) (court-ordered administration of psychoactive drugs); id.

§ 597.049(a) (surrogate medical decisionmaker ); Tex . Ins . Code art. 5.26-1, § 4 (showing that Department of

Insurance rate reduction would produce inadequate rates); id. art.

5.101, § 3(I) (insurance company rate adjustments); id. art. 5.131,

§ 4(b)(1)(determination that a particular rate reduction will force an

insurer to stop writing a line); Tex . Lab . Code § 103.004(a) (immunity from liability for

disclosure of false information by employer); Tex . Nat . Res . Code § 191.021(d) (designation of landmark status of

university building); Tex . Prob. Code § 42(b) (biological paternity); id.

§ 145(g) (prerequisite to independent estate administration); id.

§ 222(a)(2) (removal of personal representative for embezzlement); id.

§ 438(c)(evidence of irrevocable trust); id.

§ 684(a)(incapacity finding to support guardianship); id.

§ 761(b) (removal of personal representative for cruel treatment of ward);

id. § 777(b) (spending estate income or corpus for education or

maintenance of ward); id. § 855(g) (estate investment in ward’s

best interest); id. § 868(c)(2) (relieving a trustee of a duty if

in best interest of estate); Tex . Prop. Code § 27.004(l) (evidence to overcome determination

of third-party inspector compliance with warranties); id.

§ 27.0042(d) (reasonableness of buyout offer following construction

defect); id. § 29.003 (forced sale of real property); id.

§ 92.0563(b) (contract to waive landlord’s duty to repair under a written

lease); id. §§ 92.058(c), 94.160(c) (landlord’s proof of notice to

tenant of tenant illegalities); id. § 142.005(j)(2) (trust

modification in best interest of trust beneficiary); Tex . Tax Code § 151.159(b) (comptroller issuance of export

identification card); id. § 151.307(c) (evidence to overcome

presumption that property was not exported);

Tex . Water Code

§ 13.185(b) (utility rate relief must be in ratepayers’ best interest); Tex . Rev . Civ . Stat . art. 179(e), § 6.04(a) (prerequisite to issuing

race track license); id. art. 6243e.2(1), § 6(d)(rebuttal of

presumption of on-duty firefighter disability).

[52] E.g. , Garza v. Maverick Mkt., Inc. , 768

S.W.2d 273, 275-276 ( Tex. 1989) (requiring clear and convincing proof of

paternity in wrongful death actions); Bogart v. Somer ,

762 S.W.2d 577, 577 ( Tex. 1988) (per curiam )

(requiring clear and convincing proof to refute the presumption of gift).

[53] 443 U.S. at 318-319 (emphasis in original).

[54] 96 S.W.3d at 266; In re C.H. , 89 S.W.3d 17, 25

( Tex. 2002).

[55] Ellis County State Bank v. Keever ,

888 S.W.2d 790, 793 (Tex. 1994); Meadows v. Green , 524 S.W.2d 509, 510

(Tex. 1975) (per curiam ); accord , Omohundro v. Matthews , 341 S.W.2d 401, 411

(Tex. 1960) ( A The clear and convincing test is but another method of

measuring the weight of the credible evidence, and thus is also a fact

question.”); cf. Sanders v. Harder , 227 S.W.2d 206, 209 (Tex.

1950) ( A In practical effect [the requirement of clear and

convincing evidence] is but an admonition to the judge to exercise great

caution in weighing the evidence.”); see generally Bill Vance, The Clear and Convincing Evidence

Standard in Texas: A Critique , 48 Baylor

L. Rev . 391, 393-403

(1996) .

[56] Keever , 888 S.W.2d

at 793 (malicious prosecution case); Meadows , 524 S.W.2d at 510

(malicious prosecution case); Omohundro , 341

S.W.2d at 411 (trespass to try title case).

[57] See Sanders , 227 S.W.2d at 209-210 ( A In certain types of cases courts have frequently

pointed out that the facts must be established by clear and convincing

evidence. That rule, as said in Carl v. Settegast , Tex. Com. App., 237 S.W. 238 [1922], arose at a

time when such suits were cognizable only in courts of chancery where matters

of fact, as well as of law, were tried by the chancellor. Verdicts of juries in those courts were

advisory only. In our blended system the

field in which that rule operates is very narrow. In practical effect it is but an admonition

to the judge to exercise great caution in weighing the evidence. No doctrine is more firmly established than

that issues of fact are resolved from a preponderance of the evidence, and

special issues requiring a higher degree of proof than a preponderance of the

evidence may not be submitted to a jury.

Carl v. Settegast , supra; McCormick and Ray on

Evidence, Section 30. In ordinary civil

cases trial courts and Courts of Civil Appeals may set aside jury verdicts and

grant new trials when, in their opinion, those findings, though based upon some

evidence, are against the great weight and preponderance of the evidence, but

they may not render judgment contrary to such findings. In those cases in which the ‘clear and

convincing’ rule is applicable if, in the opinion of the trial judge, the

evidence in support of the verdict does not meet the test of that rule, he may

set it aside and order a new trial; but he should not render judgment contrary

thereto.”); Keever , 888 S.W.2d at 793 .

[58] Horrocks v. Texas

Dept. of Transp . , 852 S.W.2d 498, 499 (Tex. 1993)

(per curiam ) (“Ordinarily, an appellate court should render

judgment after sustaining a complaint as to the legal sufficiency of the

evidence.”); Holt Atherton Industries, Inc. v. Heine ,

835 S.W.2d 80, 86 (Tex. 1992) ( A As a general matter, when we sustain a no evidence

point of error after a trial on the merits, we render judgment on that

point.”); see Calvert, supra note 19, at 362 ( A ‘No evidence’ points of error are inherently and

fundamentally points which call for reversal of a trial court’s judgment and

rendition of judgment for the appellant.”).

[59] Garza v. Alviar , 395

S.W.2d 821, 823 (Tex. 1965) ( A If the contention [that the evidence is factually

insufficient] is sustained, the finding under attack may be set aside and a new

trial ordered.”); see Calvert, supra note 19, at 365 ( A ‘Insufficient evidence’ points of error are points

which call for a reversal of the trial court’s judgment and remand of the case

for retrial.”).

[60] Choate v. San Antonio & A.P. Ry . , 44 S.W. 69, 69 ( Tex. 1898); see also Muhle

v. New York, T. & M. Ry . , 25 S.W. 607 ( Tex. 1894) (stating that “whether or not there was

evidence from which the jury might have [made a finding] is a question of law

which we are called upon to determine.”).

[61] Harte -Hanks

Communications, Inc. v. Connaughton , 491 U.S. 657, 685 (1989).

[62] E.g. , Bentley v. Bunton ,

94 S.W.2d 561, 596-597 ( Tex.

2002).

[63] 96 S.W.3d at 266.

[64] 532 U.S. 424, 431 (2001).

[65] Post at ___.

[66] Post at ___.

[67] Post at ___.

[68] Post at ___.