
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN




NO. 03-01-00279-CV


Neisha Jones, Appellant

v.


Texas Department of Protective and Regulatory Services, Appellee




FROM THE DISTRICT COURT OF TRAVIS COUNTY, 126TH JUDICIAL DISTRICT

NO. FM007061, HONORABLE PETER M. LOWRY, JUDGE PRESIDING





	Appellant Neisha Jones appeals the denial of her bill of review.  By two issues, she
urges that the district court erred in refusing to submit her bill of review to a jury for a trial on the
merits and in failing to file findings of fact and conclusions of law.  We hold that Jones established
a prima facie meritorious defense, satisfying the first element of a bill of review, and was therefore
entitled to a jury trial on the bill's merits.  Accordingly, we will reverse the district court's order and
remand the cause for further proceedings.


BACKGROUND (1)
	Neisha Jones was fourteen, under the care of the Texas Department of Protective and
Regulatory Services (the "Department"), (2) and living in the San Marcos Treatment Center, a fully
accredited psychiatric hospital and residential treatment center, when she became pregnant.  She
gave birth to a daughter on September 4, 1996, and mother and child moved into foster care.  Jones
and her daughter eventually moved to a licensed child-placing facility, but Jones remained in the
Department's care.  Jones was expected to stay at the facility until she reached eighteen, although
the facility had indicated that she could stay longer if she continued her education and employment. 
Jones, however, had informed the facility of her plans to leave, with her daughter, upon reaching age
eighteen.
	In early 1999, when she was seventeen, Jones violated the facility's rules by going
on a date, taking her daughter with her, and failing to inform the facility's officials where she was
going, whom she would accompany, and the license plate number of the car in which she would be
riding.  Instead, Jones told the officials that she was leaving to visit her grandmother.  In response
to this incident, the facility threatened to call Jones's caseworker, remove her child from her care,
and place her child for adoption.  Subsequently, Jones's daughter was taken from her and placed in
foster care.
	On February 16, 1999, the Department initiated termination proceedings against
Jones.  The district court appointed an attorney to represent Jones.  In August, Jones moved out of
the facility and in with her grandmother; her daughter remained in foster care.
	On April 28, 2000, Jones signed an affidavit of voluntary relinquishment of parental
rights.  Her court-appointed attorney was not present at the time, although her caseworker and two
Child Protective Services ("CPS") (3) employees were present.  On May 1, the district court held a
hearing on the Department's petition to terminate Jones's parental rights and terminated those rights
based on Jones's relinquishment affidavit. (4)  Jones was not present at this hearing, but her court-appointed attorney was. (5)
	Jones filed this bill of review on October 30, claiming that her affidavit was not
voluntarily executed because her attorney was not present when she signed it and because the
affidavit was procured by the Department's fraud.  Jones further asserted that the Department had
no basis for terminating her parental rights, other than the affidavit, and that the termination was not
in the child's best interest.  After hearing evidence, the district court denied the bill of review.  Jones
timely requested findings of fact and conclusions of law.  When no findings or conclusions were
filed within twenty days of the request, Jones filed a notice of past due findings of fact and
conclusions of law.  See Tex. R. Civ. P. 297.  Forty days after the original request, the district court
still had not filed findings and conclusions.  See id.  Jones now appeals the denial of her bill of
review by two issues.  Jones's first issue challenges the district court's refusal to submit her bill of
review to a jury for a trial on the merits.  By her second issue, Jones claims the district court erred
in failing to file findings of fact and conclusions of law.

I.  Applicable Law
	A bill of review is an equitable proceeding by a party to a former action who seeks
to set aside a judgment that is no longer appealable or subject to challenge by a motion for new trial. 
Wembley Inv. Co. v. Herrera, 11 S.W.3d 924, 926-27 (Tex. 1999).  A bill-of-review complainant
must prove three elements:  (1) a meritorious defense to the cause of action alleged to support the
judgment, or a meritorious claim, (2) which he or she was prevented from making by the fraud,
accident, or wrongful act of the opposing party or official mistake, and (3) unmixed with the fault
or negligence of the complainant.  Hanks v. Rosser, 378 S.W.2d 31, 34-35 (Tex. 1964); Alexander
v. Hagedorn, 226 S.W.2d 996, 998 (Tex. 1950).  Bill-of-review relief is available only if a party has
exercised due diligence in pursuing all adequate legal remedies.  Herrera, 11 S.W.3d at 927.  If legal
remedies were available but ignored, relief by bill of review is unavailable.  Id.
	The procedure for conducting a bill-of-review proceeding is set out in Baker v.
Goldsmith, 582 S.W.2d 404 (Tex. 1979).  First, the bill-of-review complainant must file a petition
alleging factually and with particularity the three elements of a bill of review.  Id. at 408.  The
complainant must then present, as a pretrial matter, prima facie proof to support the meritorious
defense alleged in the petition.  Id.  The only relevant inquiry at this preliminary stage is whether (1)
the complainant's defense is barred as a matter of law and (2) the complainant will be entitled to
judgment on retrial if no evidence to the contrary is offered.  Id. at 408-09.  This is a question of law
for the court.  Id. at 409.  In making its determination, the district court may consider discovery
documents, affidavits, and such other evidence that the court admits under its discretion.  Id.  The
bill-of-review defendant may also present proof, but is limited to showing that the meritorious
defense is barred as a matter of law; any factual questions arising out of factual disputes are resolved
in favor of the complainant at this preliminary stage of the proceeding.  Id.  If the court determines
that the complainant has failed to establish a prima facie meritorious defense, the court shall
terminate the bill-of-review proceeding and dismiss the case.  Id. 
	On the other hand, if the district court determines that the complainant has presented
a prima facie meritorious defense, the court may then conduct a trial, during which the complainant
must prove, by a preponderance of the evidence:  (1) whether the complainant was prevented from
asserting the meritorious defense due to fraud, accident, or wrongful conduct by the opposing party
or official mistake (2) unmixed with the fault or negligence of the complainant.  Id.  If the
complainant satisfies this burden, the underlying controversy between the parties is retried.  Id.  The
district court may try these remaining two elements in conjunction with the retrial of the underlying
case or may conduct a separate trial on the elements.  Id.; Martin v. Martin, 840 S.W.2d 586, 591
(Tex. App.--Tyler 1992, writ denied).  The complainant may demand a jury trial on the two
remaining elements.  Martin, 840 S.W.2d at 592.

II.  Procedural Background
	In this case, Jones complains of the district court's refusal to grant her a jury trial. 
As explained above, however, a complainant such as Jones is not entitled to a jury trial until she has
surmounted the first bill-of-review hurdle--prima facie proof of a meritorious defense.  It is only
after the district court has determined that the complainant has presented such prima facie proof that
she may present her case to a jury.  Thus, we will sustain Jones's issue if it appears from the record
that Jones presented prima facie proof of a meritorious defense, and the district court considered the
merits of Jones's bill of review, including the final two elements, without honoring her request for
a jury.
	The district court held two hearings on Jones's bill of review, the first on March 12
and the second on March 13.  Although both Jones and the Department characterize the March 13
hearing as a hearing on the merits of the bill of review, our review of the record reveals otherwise.
	The only notice included in the clerk's record filed with this Court reflects that a
"pretrial hearing" was set for March 12.  There is no notice of a trial on the merits of the bill of
review.  The reporter's record of the March 12 hearing designates the hearing as a "PRETRIAL
HEARING."  At the beginning of the hearing, the district court stated his understanding of its
purpose:  "I understand that the only thing to be heard to day [sic] is whether there is a jury issue
involved in the pretrial.  Is that right?"  Both parties responded that the district court was correct and
presented arguments to the court regarding whether Jones was entitled to a jury trial.  Neither party
presented evidence during the hearing.
	The Department argued that although Jones might demand a jury, she first had to
establish a meritorious defense, so it scheduled the March 12 pretrial hearing to allow Jones to
establish "that she has a meritorious defense that's not barred as a matter of law . . . .  [S]he has to
make her prima facie case before this can get to a jury or for a judge to decide."  And, according to
the Department, Jones had to establish that she exercised due diligence prior to filing the bill of
review.
	Jones, on the other hand, urged that no pretrial hearing was necessary because Jones
was not required to present a meritorious defense due to the constitutional implications of her
complaint.  In the alternative, she argued that she had already established her meritorious defense
by stating under oath in her sworn petition that her relinquishment affidavit was involuntarily
executed.  Because the district court should not consider any controverting evidence when
determining if a meritorious defense has been established and because the Department did not urge
that Jones's defense was barred as a matter of law, Jones contended that her sworn statement was
sufficient prima facie proof of a meritorious defense; therefore, the court should proceed in
considering the merits of the bill of review and grant Jones's request for a jury trial.
	After considering the parties' arguments, the district court ruled that "the matters that
are the subject of the pretrial [i.e., prima facie proof of a meritorious defense] do not involve fact
questions for a jury, so I'm going to deny the request for a jury.  Not on the merits [of the bill of
review] of course, but on this preliminary hearing."  There is no written order in the clerk's record
reflecting the court's ruling.  After the court announced his ruling, he confirmed that the parties
would "start in the morning."  At this juncture, neither the parties nor the court referred to a trial on
the merits of the bill of review.
	The reporter's record of the March 13 hearing is designated "BILL OF REVIEW
HEARING ON THE TERMINATION OF PARENTAL RIGHTS."  There is nothing in the clerk's
record, however, that evidences that this hearing was separately noticed. (6)  It appears from a reading
of the reporter's record that this hearing was simply a continuation of the pretrial hearing from the
previous day.  Instead of discussing Jones's right to a jury trial, however, the parties presented
evidence primarily addressing the issue of a meritorious defense. (7)  Following the presentation of
evidence by the parties, the district court found that Jones "did not present a meritorious defense." 
Having concluded that Jones did not satisfy her burden, the court denied the bill of review. (8)  Thus,
it appears that the purpose of the hearing was to consider whether Jones had presented prima facie
proof of a meritorious defense.  We will therefore construe the March 13 hearing as a pretrial hearing
and the district court's judgment as an order of dismissal based on Jones's failure to offer proof of
a meritorious defense, and will review Jones's issues accordingly.  See EMW Mfg. Co. v. Lemons,
741 S.W.2d 212, 216-17 (Tex. App.--Fort Worth 1987), rev'd on other grounds, 747 S.W.2d 372
(Tex. 1988).  Because the only relevant inquiry at a pretrial hearing, whether the complainant has
presented prima facie proof of a meritorious defense that is not barred as a matter of law, is a
question of law, we review the district court's decision on this issue de novo.  See Nichols v. Jack
Eckerd Corp., 908 S.W.2d 5, 7-8 (Tex. App.--Houston [1st Dist.] 1995, no writ).
	Jones's first issue complains of the district court's refusal to submit the bill of review
to a jury for a trial on the merits.  Jones, however, was not entitled to a jury trial during the
preliminary stage of the bill-of-review proceeding.  Although it appears from her brief that Jones has
construed the March 13 hearing as a hearing on the merits of her bill of review and has accordingly
couched her issue in terms of being denied a jury trial, she also raises issues relating to her
presentation of a meritorious defense during the hearing.  Liberally construing her issue, as we must,
we will address those points that can be reasonably gleaned from the issue and supporting arguments
presented.  See Tex. R. App. P. 38.1(e), 38.9.

III.  Discussion 
	Jones argues that she established a prima facie meritorious defense, entitling her to
a jury trial on the remaining two bill-of-review elements.  Alternatively, even if she failed to
establish a prima facie meritorious defense, she argues that she was not required to offer proof of
this initial element because of the constitutional implications of her complaint.  We will first address
whether Jones offered proof of a meritorious defense.
	In the judgment, the district court states the basis for terminating Jones's parental
rights:  

	The Court finds by clear and convincing evidence that Respondent Mother,
NIESHA [sic] JONES, has executed an irrevocable Affidavit of Relinquishment of
Parental Rights to the subject child, TA NIESHA JONES.  The Court further finds
that this Affidavit satisfies all the requisites of § 161.103 and § 161.001(1)(K) of the
Texas Family Code, and is herein incorporated for all purposes.

	The Court further finds by clear and convincing evidence that termination of
the parent-child relationship between NIESHA [sic] JONES and the child, TA
NIESHA JONES, is in the best interest of the subject child.  (Texas Family Code
§ 161.001(2)).


Thus, Jones was required to establish a meritorious defense to either of the two bases in order to
proceed beyond the initial stage of her bill-of-review proceeding. (9)
	Jones maintains, as a defense to the first basis for termination, that her affidavit of
relinquishment was involuntarily executed.  The family code implicitly recognizes that an affidavit
of relinquishment must be executed voluntarily.  Tex. Fam. Code Ann. § 161.103 (West Supp.
2002); Vela v. Marywood, 17 S.W.3d 750, 759 (Tex. App.--Austin 2000), pet. denied, 53 S.W.3d
684 (Tex. 2001).  An involuntarily executed affidavit is a complete defense to a termination suit
based solely on section 161.001(1)(K) of the family code.  In re V.R.W., 41 S.W.3d 183, 193 (Tex.
App.--Houston [14th Dist.] 2001, no pet.); Vela, 17 S.W.3d at 759.
	Once the Department established by clear and convincing evidence that Jones's
affidavit was executed according to the terms of section 161.103 of the family code, the affidavit
could only be set aside upon proof, by a preponderance of the evidence, that it was procured by
coercion, duress, fraud, deception, undue influence, or overreaching.  Vela, 17 S.W.3d at 758.  Jones
asserts that her signing of the affidavit was a result of fraud.
	At common law, fraud refers to "an act, omission, or concealment in breach of a legal
duty, trust, or confidence justly imposed, when the breach causes injury to another or the taking of
an undue and unconscientious advantage."  Id. at 760.  It may consist of both active
misrepresentation and passive silence.  Id.  Common-law fraud includes actual and constructive
fraud.  Id. at 761.  Actual fraud encompasses dishonesty of purpose or intentional breaches of duty
that are designed to injure another or to obtain an undue and unconscientious advantage.  Archer v.
Griffith, 390 S.W.2d 735, 740 (Tex. 1964); Vela, 17 S.W.3d at 761.  Constructive fraud, on the other
hand, is a breach of duty that the law declares fraudulent, regardless of the actor's intentions, because
it tends to deceive others, violates confidences, or causes injury to public interest.  Archer, 390
S.W.2d at 740; Vela, 17 S.W.3d at 761.  "A false representation of a past or present material fact,
when one has a duty to speak the truth, is a frequent ground for recovery in fraud when another relies
on the representation to her detriment, even in an ordinary arms-length transaction where only the
ethics of the marketplace apply."  Vela, 17 S.W.3d at 761 (citing Chien v. Chen, 759 S.W.2d 484,
495 (Tex. App.--Austin 1988, no writ)).
	A "legal duty" may arise from several sources, including moral, social, domestic, or
purely personal relationships--relationships where "the law demands of one party an unusually high
standard of ethical or moral conduct with reference to another."  Chien, 759 S.W.2d at 494 n.6
(quoting 1 Bogert, Trusts and Trustees, §§ 1, 3 (2d ed. 1984)); accord Thigpen v. Locke, 363 S.W.2d
247, 253 (Tex. 1962); Vela, 17 S.W.3d at 760.  A legal duty may exist if it is established that one
has placed special confidence in another, thereby giving that person a position of superiority and
influence.  Vela, 17 S.W.3d at 760-61.  A legal duty may also be present where, because of family
relationship or otherwise, a person is accustomed to being guided by the judgment or advice of
another or is justified in placing confidence in the belief that the other will act in the interest of that
person.  Thigpen, 363 S.W.2d at 253 (citing Restatement of Restitution § 182 cmt. on clause (b)
(1937)).  The length of the relationship is another important factor in determining whether a duty
exists.  Chien, 759 S.W.2d at 494 n.6.  Additionally, certain groups are owed a higher obligation
because of their vulnerabilities.  Vela, 17 S.W.3d at 761.  Finally, when a party undertakes to speak,
that party assumes a duty to tell the whole truth.  Id.
	Jones's testimony during the pretrial hearing reveals that she had been in the
Department's care from at least the age of fourteen, when she became pregnant, and remained in its
care until she turned eighteen.  Jones attended special education classes while in school and only
completed the eleventh grade.  She had also been treated for depression while in the Department's
care.  She was eighteen when she signed the relinquishment affidavit.  Jones testified that before she
signed the affidavit, the Department, through its employees, counseled her and discussed some of
the possible results following her voluntary relinquishment of her parental rights. 
	Reviewing Jones's evidence de novo and presuming it true, as we must, we conclude
that Jones presented prima facie evidence that the Department owed Jones a duty of complete
disclosure.  Considering the length of the relationship between Jones and the Department, Jones's
particular vulnerabilities, and the special confidence she placed in the Department and her
caseworker, the Department was bound in equity and good conscience to act in good faith and with
due regard for the interests of Jones.  In addition, once the Department undertook to advise Jones
through its employees, the Department owed Jones a duty to tell the "whole truth."
	Having concluded that the Department owed a duty of complete disclosure to Jones,
we must now determine whether Jones presented prima facie proof of the remaining elements of
fraud--an act, omission, or concealment in breach of a legal duty, causing injury or the taking of an
undue and unconscientious advantage.  At the hearing, Jones testified concerning the day she signed
the voluntary relinquishment affidavit and her motivations for doing so.  She arrived at CPS that day
because she was led to believe that if she did not show up, she "was going to get my baby [taken]
away, get her adopted."  At CPS, Jones met with her caseworker and two other CPS employees. 
Jones asked for her attorney, but was told by one of the CPS employees that they "could not get a
hold of my caseworker -- I mean, to my lawyer.  Then they said that they had talked to her on the
phone and that she said for me to go ahead and sign the papers."  Jones never spoke to her attorney
that day and was not given a copy of her signed relinquishment affidavit to take with her.
	Jones then recounted the representations made to her by the CPS employees.  Jones
was informed that if she signed the "papers," her daughter "was going to go to my cousin, my cousin
Marsha, and that I would get to send her letters and pictures every day and I would get to see her
every once in a while."  Jones believed that her cousin Marsha was willing to care for Jones's
daughter and that Jones would indeed be allowed to enjoy pictures, letters, and visits with her
daughter.  If Jones did not sign the voluntary relinquishment affidavit, however, CPS was "going to
give her [Jones's daughter] up for adoption" to a stranger and Jones "wasn't going to get to see her
at all."  There is no evidence that the Department informed Jones that her parental rights could not
be involuntarily terminated unless she was provided an opportunity for a trial.  No one informed
Jones that if Marsha were unable to care for Jones's daughter, Jones would be unable to contest her
daughter's placement or that Jones would be unable to bring her daughter back home with her. 
	Later, when Jones met with her daughter for a good-bye visit, her caseworker
suggested that Jones explain to her daughter "how she was going to stay with my cousin Marsha." 
The caseworker did not suggest that Jones's daughter might be going to live someplace other than
Marsha's.
	Finally, Jones testified that when she signed her voluntary relinquishment affidavit,
she did not mean for her daughter to go to just anyone.  She would not have signed the affidavit if
her caseworker had not made the representations that she made.  In fact, as soon as Jones discovered
that her daughter would not be living with Marsha, she immediately sought legal representation and
filed her bill of review.
	The only question before the district court, following the presentation of this
evidence, was whether Jones presented prima facie proof that she would be entitled to judgment on
retrial if no evidence to the contrary were offered.  Baker, 582 S.W.2d at 408-09.  As observed by
one commentator, because all contrary evidence must be disregarded, our review of the evidence
seems analogous to a legal evidentiary review:  "[I]t would seem then that as long as there is some
probative evidence--more than a scintilla--to support the defense, the determination . . . must be
made in the [complainant's] favor."  2 Jeremy C. Wicker, Texas Civil Trial and Appellate Procedure
§ 9-16 (Matthew Bender & Co. ed. 2001); accord Lemons, 741 S.W.2d at 216-17 (quoting 31 J.
Wicker, Civil Trial and Appellate Procedure, § 320 (Texas Practice 1985)).  Within this framework,
our review of the record reveals that Jones presented evidence showing her relinquishment affidavit
was wrongfully procured.  Considering only Jones's version of events, as we must, we conclude that
Jones signed the relinquishment affidavit because, based on the Department's representations, she
believed that (1) if she did not sign, her daughter would be taken from her and she would never see
her again and (2) if she did sign, her daughter would be placed with her cousin Marsha.  The
Department failed to warn Jones that by signing the affidavit, she would have no legal rights to her
daughter, wherever she was placed, and could not enforce any of the Department's representations
about Jones's ability to continue to play a role in her child's life.  These representations and
omissions, if uncontested, would constitute a breach of the Department's legal duty to Jones,
regardless of its intentions, and would be fraudulent.  Accordingly, we conclude that Jones presented
prima facie proof of her contention that her affidavit of relinquishment was involuntarily executed
because Jones was induced to sign it by the Department's fraud. (10) 
	In its brief, the Department responds to Jones's allegations by asserting that (1) Jones
failed to exercise due diligence in exercising all available remedies before filing a bill of review, (2)
Jones's defense was barred as a matter of law, and (3) Jones would not be entitled to judgment on
retrial.  With regard to its due-diligence assertion, the Department argues that Jones failed to file a
motion to revoke her affidavit prior to the termination hearing; at the hearing, Jones did not
challenge the voluntariness of the affidavit; Jones was not present at the termination hearing, and her
attorney presented no evidence at the hearing; and Jones failed to file a motion for new trial or appeal
the termination judgment.
	Jones's bill of review alleges that she did not discover that her child would not be
living with Marsha and thus did not learn of the Department's fraud until more than thirty days after
the judgment terminating her parental rights was rendered.  Thus, she sufficiently pleaded that she
could not have asserted her defense before then.  Whether Jones was negligent for not asserting her
claims at the termination hearing and whether she failed to exercise due diligence were not issues
before the district court during the pretrial hearing; therefore, Jones was not required to present
evidence supporting her due-diligence assertions at this hearing.  See Beck v. Beck, 771 S.W.2d 141,
142 (Tex. 1989). 
	In arguing that Jones's meritorious defense is barred as a matter of law, the
Department advances the same arguments regarding Jones's lack of diligence in pursuing all
available remedies.  As explained above, Jones's alleged negligence in failing to timely appeal the
district court's judgment is not an issue to be considered during the preliminary hearing.  See id. 
	Finally, the Department argues that Jones would not be entitled to judgment on retrial. 
In support of this argument, the Department asserts that the district court may, within its discretion,
accept evidence presented by the bill-of-review defendant, directs this Court to controverting
evidence developed by the Department during the pretrial hearing, (11) and distinguishes this case from
the facts in Vela.  The Department's assertion is contrary to Baker v. Goldsmith, where the supreme
court held that the bill-of-review defendant is limited to offering proof that shows that the
meritorious defense is barred as a matter of law.  582 S.W.2d at 409.  Evidence offered by the
Department disputing Jones's factual allegations or credibility may not be considered during this
preliminary stage.  See K.B. Video & Elecs., Inc. v. Naylor, 847 S.W.2d 401, 405 (Tex.
App.--Amarillo 1993, writ denied) (prima facie showing means, disregarding contrary evidence,
would complainant be entitled to judgment on retrial; it does not mean preponderance of evidence);
Martin v. Martin, 840 S.W.2d 586, 592 (Tex. App.--Tyler 1992, writ denied) (trial court should not
consider any controverting evidence in determining whether prima facie proof of meritorious defense
has been established).  The only issue at this pretrial juncture is whether Jones presented prima facie
proof of grounds not barred as a matter of law and that would entitle her to judgment on retrial if no
evidence to the contrary is offered; the district court was not called upon to determine whether the
result would probably be different on retrial.  Id. at 408-09.  Such an inquiry would require the court
to weigh the evidence, which is not a proper function of the court during such pretrial proceeding;
instead, all factual disputes are resolved in Jones's favor.  Id.  Thus, we sustain Jones's first issue,
reverse the district court's dismissal of her bill of review, and remand the cause to the district court
for further proceedings on the remaining elements of Jones's bill of review. (12)

CONCLUSION
	We hold that Jones presented prima facie proof that her affidavit of voluntary
relinquishment of parental rights was procured by fraud and was thus involuntarily executed. 
Because Jones presented prima facie proof of a meritorious defense that was not barred as a matter
of law, the district court erred in dismissing her bill of review.  Accordingly, we reverse the district
court's order of dismissal and remand the cause to the court for further proceedings.


					__________________________________________
					Lee Yeakel, Justice
Before Justices Kidd, Yeakel, and Patterson: Opinion by Justice Yeakel;
   Dissenting Opinion by Justice Patterson

Reversed and Remanded
Filed:   August 30, 2002
Publish
1.        These facts are taken from Jones's pleadings and the evidence she presented at the bill-
of-review hearing.  For reasons explained later in the opinion, we did not consider the evidence
presented by the Texas Department of Protective and Regulatory Services in constructing the factual
background of the case.
2.        The record does not reveal the circumstances precipitating Jones's placement with the
Department; nor does it detail how long Jones had been in the Department's care.
3.        Child Protective Services is a program within the Department.  See 40 Tex. Admin. Code
§ 700.402(3) (2002).
4.        The district court also terminated the rights of the alleged biological father.  He did not appear
at the termination hearing, did not challenge the decree terminating his rights, and is not a party to
this appeal.
5.        Jones testified at the bill-of-review hearing that she thought someone from the Department told
her she did not have to be present at the hearing on the petition to terminate her parental rights.
6.        In fact, in a joint stipulation filed at the request of this Court, the parties stipulated that the
March 12 pretrial setting was the only setting obtained.  No setting for a jury or non-jury trial on the
merits of the bill of review was ever obtained.
7.        Following the presentation of Jones's evidence, the Department cross-examined Jones and
presented evidence of its own.  This evidence not only controverted Jones's meritorious defense, but
also addressed whether Jones had been negligent in failing to pursue all available remedies before
filing her bill of review.  Jones objected to all controverting evidence presented by the Department,
arguing that controverting evidence cannot be considered by the district court in determining whether
a prima facie meritorious defense has been established and therefore the evidence is irrelevant and
inadmissible.  See Lemons v. EMW Mfg. Co., 747 S.W.2d 372, 373 (Tex. 1988) (once it becomes
clear that proceedings are not preliminary and trial judge intends to proceed with bill-of-review trial,
party should object); Harris v. Moore, 912 S.W.2d 860, 862 (Tex. App.--Austin 1995, no writ)
(because bill-of-review complainant asserted at hearing that he did not expect decision on merits of
bill of review, he preserved his complaint regarding nature of hearing).
8.        The district court's order states that Jones's bill of review is "denied."  However, if a court
concludes that the complainant has failed to establish a meritorious defense, the court should
terminate the bill of review proceeding and dismiss the case.  Baker v. Goldsmith, 582 S.W.2d 404,
409 (Tex. 1979).  In this case, the district court stated that Jones "did not present a meritorious
defense."  Thus, although the wording of the district court's order is inartful and does not purport
to "dismiss" the case, because the court terminated the proceeding during this preliminary stage,
upon finding that Jones failed to satisfy the first element of a bill of review, the district court
dismissed the case as a matter of law, and we will construe the order as a dismissal order.  See EMW
Mfg. Co. v. Lemons, 741 S.W.2d 212, 216 (Tex. App.--Fort Worth 1987), rev'd on other grounds,
747 S.W.2d 372 (Tex. 1988).
9.        Section 161.001 of the family code provides that the court may order termination of the parent-child relationship if the court finds by clear and convincing evidence that the parent has executed an
irrevocable affidavit of relinquishment of parental rights and that termination is in the best interest
of the child.  Tex. Fam. Code Ann. § 161.001 (West Supp. 2002).  This provision requires proof of
both elements.  Vela v. Marywood, 17 S.W.3d 750, 759 (Tex. App.--Austin 2000), pet. denied, 53
S.W.3d 684 (Tex. 2001).
10.        We reiterate that our consideration of Jones's defense is through the prism of whether Jones
would be entitled to judgment on retrial if no controverting evidence were offered.  We express no
opinion on the ultimate outcome of Jones's bill of review.  
11.        To controvert the evidence offered by Jones, the Department cross-examined Jones and
presented its own witness, Gillespie, during the pretrial hearing.  It also offered a number of exhibits
as evidence, which the district court admitted. 
12.        Because we are sustaining Jones's first issue, we do not reach her second.  See Tex. R. App.
P. 47.1.

