dissenting.
“Injustice anywhere is a threat to justice everywhere. ”
—Dr. Martin Luther King, Jr.
Letter from the Birmingham Jail April 16, 1963
Should an employer who is challenged for purposefully discriminating based upon race, sex, or religion be permitted to avoid all responsibility for misconduct by simply abolishing the job in question? Certainly, the majority declares; indeed such a response advances what “the [Texas Commission on Human Rights] Act was designed to achieve.” 847 S.W.2d at 229.
Can the employer delay such abolition until after trial, until after issuance of an opinion by the court of appeals; in fact, delay announcing the abolition until the morning of oral argument before the Texas Supreme Court, over three years after the discriminatory conduct occurred? Can such belated employer conduct defeat any claim for attorney’s fees incurred by the victim of discrimination and any claim for declaratory relief sought by the state agency charged with enforcing our equal employment opportunity laws? Once again the majority offers unqualified affirmative answers. Because these answers will thwart efforts to prevent all forms of employment discrimination in Texas, I dissent.
With the enactment of the comprehensive Texas Commission on Human Rights Act, Tex.Rev.Civ.Stat.Ann. art. 5221k (Vernon 1987), the Legislature strongly declared Texas public policy in favor of equal employment opportunity by forbidding practices that “adversely affect [persons] ... because of race, color, handicap, religion, sex, national origin, or age.” Id. at § 5.01(2). The clear objective of this remedial act is “to secure for persons within the state freedom from discrimination ... and thereby to protect their interest in personal dignity.” Id. § 1.02(2).
It is undisputed that Georgette Speer was denied employment because of her religion. The Agency’s published job description for the position she sought contained no religious requirements, and such employees performed no religious rituals. The employer to whom she applied had, moreover, specifically pledged to refrain from religious discrimination in its contract with the Texas Department of Human Services.1 Likewise, in its employee handbook, the employer professed a commitment to equal opportunity. In direct conflict with these representations, the employer’s attorney announced to this Court that it engages in wide-ranging discrimination, applying its policy of exclusion not *242solely to adoption workers but to all employees. Only those who pass religious muster are considered by this employer for any endeavor of any kind, whether as an accountant, a receptionist, a truckdriver, or maintenance worker.
Following an investigation of Speer’s claim of unlawful discrimination, the Texas Commission on Human Rights joined her in an action against the employer for its discriminatory employment practices. Both the trial court and court of appeals held that the employer could discriminate because, as a matter of law, it was a “religious corporation.” See id. § 5.06(1). I believe that both courts applied an incorrect legal standard,2 but that question is neatly avoided by today's opinion.
Instead the majority insists on resolving this case solely on the basis of a matter wholly outside the record. For the first time during the entire course of this litigation, at oral argument before this court on October 6, 1992, the employer surprisingly urged a dismissal for mootness based on its unsubstantiated claim that the adoption services program, including the position of adoption worker, was abolished on January 31, 1992. Although lacking any factual basis with which to evaluate how the employer’s discriminatory practices have thereby been affected,3 the majority grasps this unverified and belated claim as an excuse for declaring this dispute ended.
By endorsing such evasion of our state prohibition against employment discrimination, the majority ignores the lessons learned in the enforcement of Title VII of the 1964 Civil Rights Act, 42 U.S.C. 2000e-1. Employers’ attempts to moot discrimination claims by abolishing illegal employment practices have been resoundingly rejected. See, e.g., Rowe v. General Motors Corp., 457 F.2d 348, 359 (5th Cir.1972); Local 53, Int’l Ass’n of Heat and Frost Insulators v. Vogler, 407 F.2d 1047, 1055 (5th Cir.1969); Jenkins v. United Gas Corp., 400 F.2d 28, 33 n. 11 (5th Cir.1968). The focus of the inquiry in a hiring discrimination case should be upon the employment practices that gave rise to the complaint, see Parham v. Southwestern Bell Telephone Co., 433 F.2d 421, 425 (8th Cir.1970); the employer’s subsequent machinations should not divert the Court’s attention. What the majority now praises, one court has aptly described as “resist-and-withdraw” tactics, which “in the face of litigation are equivocal in purpose, motive and permanence” and should in no event *243provide the basis for a dismissal on mootness grounds:
The defendant is free to return to his old ways. This, together with a public interest in having the legality of the practices settled, militates against a mootness con-clusion_ [Voluntary cessation of allegedly illegal conduct does not deprive the tribunal of power to hear and determine the case, i.e., does not make the case moot.
Jenkins, 400 F.2d at 33 n. 11 (quoting U.S. v. W.T. Grant Co., 345 U.S. 629, 632-33, 73 S.Ct. 894, 897-98, 97 L.Ed. 1303 (1953)) (emphasis in original); see also City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 289, 102 S.Ct. 1070, 1074, 71 L.Ed.2d 152 (“It is well settled that a defendant’s voluntary cessation of a challenged practice does not deprive [the judiciary] of its power to determine the legality of the practice.”).4
Speer’s claim was of such “general public importance” that the Texas Human Rights Commission filed a separate suit against the employer that was later consolidated with this case. Emphasizing that much more than Speer’s personal rights are at stake, the Commission seeks to vindicate the public interest as required by its statutory mandate. Tex.Rev.Civ.Stat.Ann. art. 5221k, § 7.01(a). Because the Commission is empowered to protect past, present, and future employees, its authority extends beyond the claim of a single individual:
[Eradication of discrimination by race and sex promotes public interests and transcends private interests. Each step along the road to equal employment opportunity takes us closer to the goal of a truly open society, confining individuals only within boundaries set by their own talents and determination.
EEOC v. Kimberly-Clark Corp., 511 F.2d 1352, 1359 (6th Cir.), cert. denied, 423 U.S. 994, 96 S.Ct. 420, 46 L.Ed.2d 368 (1975); see also EEOC v. McLean Trucking Co., 525 F.2d 1007, 1010 (6th Cir.1975) (upholding EEOC’s right to sue even though the individual plaintiff had settled a separate suit against the employer). Urging its “continuing interest in this cause,” the Commission implored this Court to reach the merits of this case:
Nothing has changed in this cause that makes its final resolution by this Court of any less public importance. Indeed, now that the Court of Appeals has publicly opined on the subject, the case is arguably of more public import now than when it first arose. The controversy is real — not imagined — and capable of judicial resolution.
Petitioners’ Joint Reply to Post-Submission Brief of Respondent at 14. By completely disregarding the public impact of employment discrimination and completely failing to explain why the Commission cannot now proceed, the majority today severely handicaps public enforcement of our equal employment laws.
In its continuing effort to eviscerate substantial portions of the prior decisional law of this Court,5 the majority has effectively *244rewritten Camarena v. Texas Employment Comm’n, 754 S.W.2d 149 (Tex.1988). There farm workers, who challenged their unconstitutional exclusion from unemployment benefits, were improperly denied attorney’s fees by the trial court. Because of legislative developments subsequent to that judgment, the court of appeals held the requested declaratory relief moot and also barred recovery of attorney’s fees. We unanimously and unequivocally rejected the claim of mootness:
Clearly, a controversy exists between the farm workers and TEC. The “live” issue in controversy is whether or not the farm workers have a legally cognizable interest in recovering their attorney’s fees and costs_ [T]he attorney’s fees issue ... is an integral part of the farm workers’ claim and as such breathes life into the appeal. Due to the existence of the “live” issue of attorney’s fees and costs, we hold that the suit was not moot.
Id. at 151. Attempting to distinguish Ca-marena, the majority modifies its holding in the following nonsensical way: a party prevailing in the trial court but wrongfully denied attorney’s fees may appeal; a party who does not prevail, even if as a result of the trial court’s legal error, may not appeal. Yet a party’s right to attorney’s fees is either a right that may be pursued by appeal or it is not. While the claim for attorney’s fees necessarily hinges on the merits of the case, when the merits are erroneously decided in the lower court, the prevailing party should be able to recover its attorney’s fees in this Court. Speer asserts that the only reason she “did not prevail at any stage of this litigation,” 847 S.W.2d 228-29 at n. 4, is because of the mistakes committed, as a matter of law, by the courts which have previously considered her case.
Instead of opposing the obstacle to equal opportunity raised by the majority, the concurrence not surprisingly apologizes for it while denigrating this dissent. 847 S.W.2d at 233 (Gonzalez, J., concurring). This most lengthy of all the writings issued today is strangely rationalized as required to “respond to the dissent,” id. at 233, which is dismissed as “offer[ing] little in the way of explanation or analysis.” Since neither detailing the appropriate legal standard nor evaluating the evidence is in any way required to respond to the shortcut taken by the majority today, this dissent is directed toward the unsupported refusal to consider the merits of this appeal. The concurring justice answers questions raised solely by his own excessive zeal at the same time he proclaims they cannot be properly addressed.6 In a bulging bundle of contradictions, he decides a case that he insists should not be decided, assesses the factual sufficiency of the lower courts' decisions while proclaiming such review beyond this Court’s power to conduct,7 tink*245ers with the legal standard applied by the court of appeals while condemning my dissatisfaction with that standard as “mere[ly] pretext[ual],” 846 S.W.2d at 233, and even attempts to justify discrimination on grounds not relied upon by the trial court.8
Apparently lacking confidence in the majority’s disposition of this matter on mootness grounds, the concurring justice engages in a one-sided theological debate that misstates my position on issues that I do not purport to address. Positioning himself as defender of the faith, he says his writing is essential “to refute [the claim] that ‘Christianity’ is not a religion. 846 S.W.2d at 233. Yet such theological questions, which hardly require a dictionary for an answer, see id. at 240, are in no way germane to today’s proceeding.9 As a Christian, I realize that .the depth of an individual’s personal religious conviction is not measured by how loudly it is publicly proclaimed. As a judge, I exercise restraint in addressing the relevant issues.
Mootness10 is a judicial roadblock used here to prevent Georgette Speer and the Texas Human Rights Commission from ever having an opportunity to hold an employer accountable for undisguised discrimination. My reference to the obvious implications of today’s writing for racial discrimination has been described by the majority as “oblique,” 847 S.W.2d at 229, and by the concurrence as unjustified, id. at 241 (Gonzalez, J., concurring). If either writer has any explanation as to why today’s ruling cannot be relied upon by those who engage in the most blatant form of racial discrimination, they certainly have not provided it. There is nothing “oblique” about this issue; it is directly and pointedly presented. This decision is in no way limited to Georgette Speer or even to those who continue to suffer all too pervasive discrimination on the basis of religion; rather it is a writing which will significantly undercut those who struggle against racism and sexism in the workplace. As Dr. King also said,
[Equal employment opportunity] [legislation that is evaded, substantially nullified and unenforced is a mockery of law. Significant progress has effectively been barred by equivocations and retreats ....11
Another such retreat has occurred here today.
GAMMAGE, J., joins in this dissenting opinion.
. Now the employer seeks to avoid this public commitment to nondiscrimination by claiming that its agreement was limited to an empty promise — it was only pledging to comply with statutes from which it was exempt as a religious corporation. The record does not support this circular argument. The contract requires compliance with federal and state equal employment opportunity regulations that contain no exception for religious employers. See Exec.Order No. 11246, 3 C.F.R. 12319 (1964-1965), amended by Exec.Order 11,375, 3 C.F.R. 14303 (1966-1970), and supplemented by 41 C.F.R. § 60 (1992). The parties further expressed in the contract their understanding of what compliance with federal and state restrictions on discriminatory hiring entailed:
Compliance includes but is not limited to, giving equal opportunity both to those seeking employment and those seeking services without regard to ... religion.
Purchased Child Protective Services Contract at 3.
. Certainly I recognize that religious employers, to implement their purpose, must be able to select those employees who put into effect their religious tenets. In defining the contours of the statutory exception, appropriate deference should be accorded to these needs while remaining faithful to the legislative objective of assuring equal employment opportunity. The exception cannot be interpreted so narrowly as to encompass only the spiritual leaders of an organization; nor can it be read so broadly as to exempt all workers hired by an employer that professes a religious mission.
The concurrence would go to the extreme of permitting invidious discrimination on the basis of race, sex, or religion by any employer with a showing of little more than (1) the name of the employer contains a religious affiliation; (2) its charter references a general religious purpose; and (3) employees are required to sign a statement of religious affiliation. 847 S.W.2d at 238-39 (Gonzalez, J. concurring). His test would tear a major loophole in our state discrimination laws. My unwillingness to offer an alternative to this standard should not be read as in any way condoning the religious extreme that he would impose on Texas.
. Even the discussion at oral argument was minimal. In response to two questions that I asked, the totality of what the court learned was:
"[Tjhe agency effective January 31, 1992, has gotten out of the adoption service business, and no longer employs adoption workers." "As I say, they do not have a senior adoption worker position any longer.”
No other member of this Court made any inquiry of any type to the employer’s attorney concerning the only issue on which the majority now decides this case.
The Post-Submission Brief of Respondent at 2 merely reiterated without detail the same generalization in a single line:
"Effective January 31, 1992, [the agency] withdrew from offering adoption services and the Senior Adoption Worker position was abolished.”
Nor did the employer come forward with anything more when Speer and the Human Rights Commission challenged the unverified nature of this claim. See Petitioners' Joint Reply to Post-Submission Brief of Respondent at 4-5.
. The majority seeks to distinguish all of this persuasive authority on the basis that this particular employer did not merely abolish one job but "[disjcontinued [related] operations.” 847 S.W.2d at 229, n. 4. This is a distinction without a legally significant difference. But the majority also lacks any evidence that even this purported distinction is real. See supra note 3. We have absolutely no verification as to how this employer may have reorganized its business or what remains of the Presbyterian Children’s Home and Service Agency if child placement is no longer a part of its work. All we can be sure of is that whatever enterprise continues to exist, it is one that, by its own lawyer’s admission, routinely engages in employment discrimination.
. See, e.g., Boyles v. Kerr, 1992 WL 353277 (Tex.1992) (Doggett, J., dissenting) (objecting to majority’s overruling of landmark Texas Supreme Court decision permitting recovery for negligence resulting in emotional distress); Walker v. Packer, 827 S.W.2d 833, 851 (Tex.1992) (Doggett, J., dissenting) (noting majority’s "mass execution of precedent,” encompassing "a dozen or more Texas Supreme Court cases and countless decisions of the courts of appeals”); Carrollton-Farmers Branch Indep. Sch. Dist. v. Edgewood Indep. School Dist., 826 S.W.2d 489 at 525 (Tex.1992) (Doggett, J., dissenting) (discussing rejection by majority of its own decision issued less than one year previously); Stewart Title Guar. Co. v. Sterling, 822 S.W.2d 1, 12 (Tex.1991) (Doggett, J., dissenting) (disregarding its own recent precedent, majority looks instead to overruled case); Rose v. Doctors Hosp., 801 S.W.2d *244841, 852 (Tex.1990) (Doggett, J., dissenting) (disapproving of rejection of recent controlling precedent).
. The extent of this zealotry is amply demonstrated by the incredible claim that somehow I believe:
the religious exemption means only that a Jewish congregation cannot be forced to hire a Baptist minister as their Rabbi....
847 S.W.2d at 240 (Gonzalez, J., concurring). Despite my clear statement that "[t]he exemption cannot be interpreted so narrowly as to encompass only spiritual leaders,” supra note 2, the concurrence incredibly misrepresents my views as precisely the opposite. 847 S.W.2d at 240 ("The dissent ... proceeds to construe ‘religion’ so narrowly as to include little more than 'spiritual leaders of an organization.’ ”). A similar misrepresentation is found in the suggestion that my commitment to our vital freedom of religion, Tex. Const, art. I, § 6, is so narrow as to encourage a bureaucrat under every church pew. See id. at 240.
. The court of appeals correctly explained the distinction between the legal and factual issues presented for review:
The [trial] court concluded as a matter of law that PCHSA is a religious corporation within the meaning of the Act. In her first point of error, Speer asserts that this legal conclusion is erroneous as a matter of law. In her second point of error, Speer complains that the trial court found that PCHSA is a religious corporation "within the meaning of ... section 5.06(1).” The trial court made no such finding of fact.
******
Speer's second point of error complains of a non-existent finding_ [W]e review only the trial court's legal determination that PCHSA is a religious corporation within the meaning of section 5.06(1) of the Act.
*245824 S.W.2d at 593. Although greatly enamored with other portions of the court of appeals' decision, particularly the result it reaches on the merits, the concurrence prefers to disregard its analysis of this matter critical to our review.
. See 847 S.W.2d at 242 n. 2 (Gonzalez, J., concurring) (noting employer’s proffered defense related to providing job opportunity for another person when the record clearly shows that the other applicant’s job qualifications were unknown to the employer at the time Speer was rejected).
. Religion "means all aspects of religious observance and practice, as well as belief.” Tex. Rev.Civ.Stat.Ann. art. 5221k § 2.01(14). An argument has been advanced that application of this statutorily defined term requires reference to individual Christian denominations rather than Christianity as a whole. While this interpretation may be wrong, it never figures in any way in the writings of either the majority or the dissent. Indeed, even Justice Gonzalez fails to analyze this nonissue. Rather he poses the false question "is Christianity a religion” purely as a diversion from the wrong committed today.
. Nothing in the prior opinions of this court referenced by the majority requires a dismissal for mootness here. See 847 S.W.2d at 228 (citing General Land Office v. Oxy U.S.A., Inc., 789 S.W.2d 569, 570 (Tex.1990); Firemen’s Ins. Co. v. Burch, 442 S.W.2d 331, 333 (Tex.1968)).
. Dr. Martin Luther King, Jr., Where Do We Go From Here: Chaos or Community (1967), excerpts reprinted in A Testament of Hope: The Essential Writings of Martin Luther King, Jr. 561 (James Melvin Washington, ed., 1986).