                           COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH

                               NO. 02-12-00358-CV

VIOLETA PASKAUSKIENE                                                      APPELLANT

                                          V.

TEXAS WORKFORCE                                                           APPELLEES
COMMISSION & MICROCONSULT,
INC.


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            FROM THE 96TH DISTRICT COURT OF TARRANT COUNTY

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                          MEMORANDUM OPINION 1

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        Violeta Paskauskiene appeals from a summary judgment upholding the

Texas       Workforce   Commission’s    (TWC)       denial   of   her   application   for

unemployment benefits. In four issues, she contends that the trial court erred by

denying her a jury trial, that the trial court erred by refusing to deem admitted

requests for admissions she sent to TWC, that the trial court erred by granting

        1
        See Tex. R. App. P. 47.4.
TWC’s motion for summary judgment and denying hers, and that TWC’s decision

to deny her benefits was not supported by substantial evidence that she

committed workplace misconduct. We affirm. 2

                              Factual Background

      Paskauskiene was employed by Microconsult, Inc. to, among other things,

review testing results for products. Microconsult terminated her employment on

March 7, 2011, and she applied to TWC for unemployment benefits.

Microconsult contested her right to receive benefits, and a TWC hearing officer

determined that she was ineligible to receive benefits because Microconsult

terminated her for misconduct related to her work.        Although Paskauskiene

exhausted her agency appeals, TWC continued to deny her benefits.

Accordingly, she sued TWC and Microconsult in district court challenging TWC’s

decision. TWC and Microconsult filed a joint motion for summary judgment, and

Paskauskiene filed a competing motion for summary judgment. The trial court

granted TWC and Microconsult’s motion and denied Paskauskiene’s in a final

judgment, which she now appeals. 3




      2
      We deny TWC’s motion to dismiss the appeal for procedural defects in
Paskauskiene’s brief. See Tex. R. App. P. 38.9(a).
      3
       Microconsult settled a federal suit brought against it by Paskauskiene, and
as part of the settlement, withdrew its challenge to her claim for benefits, without
prejudice to TWC’s right to defend its decision. Thus, only TWC filed an
appellee’s brief in this appeal.


                                         2
                           Requests for Admissions

      In her second issue, Paskauskiene claims that the trial court erred by

refusing to deem admitted requests for admissions that she sent to TWC.

Paskauskiene served the requests on TWC’s counsel by facsimile on

February 7, 2012 at 5:35 p.m. TWC’s counsel mailed responses to the requests

on March 9, 2012.

      Rule 198.2 provides that “[t]he responding party must serve a written

response [to requests for admissions] on the requesting party within 30 days

after service of the request.” Tex. R. Civ. P. 198.2(a). If a response is not timely

served, the request is considered admitted without the necessity of a court order.

Tex. R. Civ. P. 198.2(c). Documents served after 5:00 p.m. of the local time of

the recipient are deemed served the following day. 4 Tex. R. Civ. P. 21a. Thus,

Paskauskiene’s requests were deemed served February 8, 2012, and TWC’s

responses were due March 9, 2012. The record contains a certificate of service

showing that TWC’s counsel mailed the responses to Paskauskiene by first class

mail on March 9, 2012. Because proper service by mail is complete upon mailing

and because Paskauskiene received the responses on March 11, 2012, within

three days of mailing, TWC’s responses were timely and thus not admitted. See

id.; Mathis v. Lockwood, 166 S.W.3d 743, 745 (Tex. 2005) (providing that

      4
       Paskauskiene says in her brief that the admissions were served at 5:35
p.m. Eastern Standard time, but the fax confirmation shows that the requests
were sent from an 817 number, the area code for Tarrant County, Texas, in the
Central Standard time zone. See Tex. R. Evid. 201(b).


                                         3
attorney’s certificate of service is prima facie evidence of service of a notice).

We overrule Paskauskiene’s second issue.

                  Propriety of Summary Judgment for TWC

      In her third issue, Paskauskiene argues that her constitutional rights were

violated when the trial court granted TWC’s motion for summary judgment and

denied hers. In her fourth issue, she contends that TWC’s decision to deny her

benefits is not supported by substantial evidence. Because both of these issues

relate to the propriety of the trial court’s granting summary judgment, we consider

these issues together.

Standard of Review

      Judicial review of a TWC decision is “by trial de novo based on the

substantial evidence rule.” Tex. Lab. Code Ann. § 212.202(a) (West 2006). This

means that the trial court must determine whether there is substantial evidence

to support TWC’s ruling. Mercer v. Ross, 701 S.W.2d 830, 831 (Tex. 1986); Int’l

Union, United Auto., Aerospace & Agric. Implement Workers of Am.-UAW v.

Gen. Motors Corp., 104 S.W.3d 126, 129 (Tex. App.––Fort Worth 2003, no pet.).

This issue is strictly one of law; the administrative agency is the primary fact-

finding body. Firemen’s & Policemen’s Civil Serv. Comm’n v. Brinkmeyer, 662

S.W.2d 953, 956 (Tex. 1984); Int’l Union, 104 S.W.3d at 129.             Summary

judgment is proper in an appeal to the trial court based on a substantial evidence

review because the only issue before the trial court is a question of law. City of




                                        4
Arlington v. Centerfolds, Inc., 232 S.W.3d 238, 243 (Tex. App.––Fort Worth

2007, pet. denied).

      Substantial evidence is more than a scintilla, but less than a

preponderance of the evidence. Blanchard v. Brazos Forest Prods., L.P., 353

S.W.3d 569, 572 (Tex. App.––Fort Worth 2011, pet. denied); City of Houston v.

Tippy, 991 S.W.2d 330, 334 (Tex. App.––Houston [1st Dist.] 1999, no pet.).

Under a substantial evidence review, the issue is whether the evidence

introduced before the trial court reveals facts in existence at the time of TWC’s

ruling that reasonably support the decision made by the TWC tribunal, that is,

whether reasonable minds could have reached the same conclusion.

Collingsworth Gen. Hosp. v. Hunnicutt, 988 S.W.2d 706, 708 (Tex. 1998). The

issue is not whether TWC’s decision was correct. Blanchard, 353 S.W.3d at 572.

Even when an agency’s decision is shown to be against the great weight and

preponderance of the evidence, a reviewing court is bound, as a matter of law, to

affirm the agency decision so long as a reasonable person could have reached

the conclusion at which the agency arrived. Tex. Workforce Comm’n v. BL II

Logistics, L.L.C., 237 S.W.3d 875, 878–79 (Tex. App.––Texarkana 2007, no

pet.). The trial court may set aside a TWC decision only if it determines that the

decision was made without regard to the law or the facts and, therefore, was

unreasonable, arbitrary, or capricious. Mercer, 701 S.W.2d at 831.

      A TWC decision regarding unemployment benefit payments carries a

presumption of validity. Collingsworth Gen. Hosp., 988 S.W.2d at 708. The


                                        5
burden is on the party seeking to set aside a TWC decision to prove that the

ruling is not supported by substantial evidence. Mercer, 701 S.W.2d at 831. We

look at the evidence presented to the trial court, not the agency record.

Nuernberg v. Tex. Emp’t Comm’n, 858 S.W.2d 364, 365 (Tex. 1993). Although

the standard of review prohibits the trial court from simply reviewing the agency’s

record to determine if the decision is supported by substantial evidence,

individual items from the agency’s record may be introduced independently

before the trial court as part of a de novo review. Id.

Evidence Supporting TWC’s Motion for Summary Judgment

      TWC attached to the motion for summary judgment the affidavits of

Microconsult’s President William Bryan, its Laboratory Director Amie Myers, and

its Quality Assurance/Quality Control Manager Myla Tuazon, as well as parts of

the TWC administrative record.        See id.; JMJ Acquisitions Mgmt., LLC v.

Peterson, No. 05-12-00263-CV, 2013 WL 2635961, at *3 (Tex. App.––Dallas

June 13, 2013, no pet. h.).

      Bryan detailed his experience in microbiology, including experience with

the testing of cosmetics, over-the-counter drugs, and consumer products, as well

as his familiarity with the FDA guidelines applicable to Microconsult’s testing

laboratory. He stated that Microconsult is an FDA-registered laboratory and is

licensed to test class 2 and 3 controlled substances by the DEA. In addition, he

said it “operates under good manufacturing practices and good laboratory

practice regulations” and that its policy is “to ensure accurate and timely testing


                                          6
services, and to continuously meet and/or exceed the expectations of [its]

customers through the day-to-day interaction.”

      Bryan averred that Microconsult hired Paskauskiene on June 1, 2010 as a

laboratory contractor to review test data and results for accuracy, including “to

ensure the data was entered correctly on Microconsult, Inc.’s test results

reports.” Her “main job function” if there were mistakes in a test record was “to

catch the mistakes and have the chemist or lab technician correct those

mistakes.” She was also to “sign the test record under the ‘Reviewed By’ section

signifying that she had reviewed the ENTIRE test record and that all of the

information thereon was accurate.”     According to Bryan, this procedure was

required as good manufacturing practices to “protect[] the consumer from

deleterious effects and protect[] and keep[] Microconsult, Inc. in regulatory

compliance.”

      Bryan also stated that he had the authority to make hiring and firing

decisions and to supervise disciplinary proceedings regarding Microconsult’s

employees.

      According to Bryan, the following event prompted Paskauskiene’s

termination:

             On March 4, 2011, one of Microconsult, Inc.’s customers was
      at our offices to perform an audit for their own quality control
      standards. During this audit, the client noticed a mistake on a lab
      report Ms. Paskauskiene had reviewed and signed off on as being
      accurate in all respects. Specifically, the audit revealed that certain
      information on the subject client report concerning test data was
      incorrect. However, Ms. Paskauskiene had nonetheless signed the


                                        7
report, representing that it had been reviewed by her for accuracy
and that the entire report was accurate.

       . . . Thus, on the afternoon of March 4, 2011, I called a
meeting with Amie Myers, Microconsult’s Laboratory Director, Myla
Tuazon, Microconsult’s Quality Assurance/Quality Control Manager
and Ms. Paskauskiene. The purpose of this March 4, 2011 meeting
was to discuss the mistake discovered by our client during their
audit, which Ms. Paskauskiene had failed to notice. During the
meeting, I asked Ms. Paskauskiene about the mistake revealed by
the audit, which the customer had found, although Ms.
Paskauskiene had approved the inaccurate report; and why she had
approved such a report. Ms. Paskauskiene responded by stating
that she never reviewed the entire test results reports as she did not
have time. This meant that she was falsifying company testing
records, including the subject report.

      . . . Additionally, during the meeting, Amie Myers showed Ms.
Paskauskiene several other test records containing mistakes which
had been signed by Ms. Paskauskiene as being accurate even
though such reports contained several mistakes. Ms. Myers had
recently reviewed the reports during a routine company quality
control audit in which random test results reports approved by
Microconsult, Inc. employees, including Ms. Paskauskiene, were
selected for further review. These reports could be reports that Ms.
Paskauskiene or others had signed. When Ms. Myers asked Ms.
Paskauskiene why there were so many test records from October
with mistakes that she had nonetheless signed and approved, as an
example of the mistakes found during the audit, Ms. Paskauskiene
stated that maybe she was distracted during that time due to her
birthday which is in October.

        . . . Based on Ms. Paskauskiene’s statement that she never
reviewed the entire test records, I stated that the meeting was over. I
knew at that time that Microconsult, Inc. would be required to
terminate Ms. Paskauskiene because she was exposing
Microconsult, Inc. and our customers to liability and had jeopardized
customer relationships by not reviewing the entire test results reports
as she was required to do, but nonetheless signed off on them
claiming she had done so. She also violated company policy by
falsifying documents. Thus, I made the decision that Ms.
Paskauskiene would be terminated the following Monday morning,
March 7, 2011, as it was past 5:00 p.m. on Friday. Ms.


                                  8
Paskauskiene did not come in to work on March 7, 2011, due to an
apparent doctor visit. Thus, we spoke on the phone the morning of
March 8, 2011, wherein I informed Ms. Paskauskiene that she was
terminated. I then e-mailed her the March 7, 2011 termination letter
to her, which would have been given to her on March 7th if she had
come into work. True and correct copies of my March 8 2011, e-mail
and termination letter are attached hereto as Exhibits “C” and “D”
and incorporated herein by reference.

         . . . Ms. Paskauskiene also had a history of tardiness and cell
phone use on company time for personal calls. These were also
factors in Microconsult, Inc.’s decision to terminate Ms.
Paskauskiene, but alone they would not have resulted in her
termination at that time. The primary reason Ms. Paskauskiene was
terminated was because she admittedly failed to review entire lab
test results reports, but nonetheless signed off on such reports
indicating that she had done so; and in doing so she falsified
company records, subjected Microconsult, Inc. and its customers to
liability and jeopardized Microconsult, Inc.’s company records and
customer relationships.

The attached termination letter includes the following:

Your signature on the raw data form and certificate of analysis
ensures that all data and results in the entire packet have been
reviewed. When I asked you how you could miss the error, you
stated that you usually do not review the entire document, yet you
signed that you did. This is falsification of a company document,
which as stated in the company policy that you signed, is an offense
that results in immediate termination.

You have missed a significant number of mistakes on reports
following your review and signature. It is your job and only job that
you review the various chemistry chain of custody forms including
data, signatures, etc. for the certificate of analysis forms. You
stated in your e-mail of March 4, 2011 that no deficiencies had ever
been discussed with you previously. Amie Myers has brought the
pink folders and sample packets to you several times a week for you
to correct the items you missed.




                                   9
      Amie Myers averred that she had been the Laboratory Director of

Microconsult for three years and, before that, the Laboratory Manager.           She

further detailed her training, experience, and responsibilities, including her

familiarity with its practices. According to Myers,

      When Ms. Paskauskiene was first hired, I spent a full two weeks with
      her at a table in my office training her on reviewing documentation,
      chemistry methods, raw data, final reports and other ancillary
      training regarding her position. There were other staff members who
      witnessed this training. The President of Microconsult, William
      Bryan, also witnessed much of the training that occurred in my
      office. Ms. Paskauskiene’s training is documented on numerous
      training forms which she signed and dated following her training.
      During Ms. Paskauskiene’s training, I clearly explained to her that
      her job duties largely consisted of, among other things, fully
      reviewing data and test records to verify their accuracy. In this
      regard, I explained to Ms. Paskauskiene the fact that it was essential
      for Microconsult, Inc.’s test records to be accurate because
      inaccurate reports subject Microconsult, Inc. and its customers to
      liability and jeopardize Microconsult, Inc.’s customer relationships
      and safety to consumers. I also explained this to her at her initial job
      interview and on her first day of employment.

             . . . A significant part of my job duties is to perform internal
      quality control audits whereby I randomly audit test records
      generated and/or approved by Microconsult employees. In January
      of 2011, I performed such an audit concerning Microconsult’s test
      records. These randomly selected test records from the Fall of 2010
      were reports which Ms. Paskauskiene or another reviewer approved
      during the fourth quarter of 2010. Ms. Paskauskiene had reviewed,
      signed and dated the majority of these test records, allegedly
      confirming that she had reviewed the entire record. In my first
      performance review of Ms. Paskauskiene, on August 4, 2010,
      following her first two months of employment, I advised Ms.
      Paskauskiene that she needed to pay attention to detail and avoid
      mistakes, as well as other areas that were less than satisfactory. A
      true and correct copy of this August 4, 2010 performance review is
      attached hereto as Exhibit “B” and incorporated herein by reference.




                                         10
       . . . On March 4, 2011, an audit by one of Microconsult’s
customers revealed a mistake on a lab test record Ms.
Paskauskiene had reviewed and signed off on as being accurate in
all respects. Specifically, the client’s audit revealed that information
on the client’s test record was incorrect.               However, Ms.
Paskauskiene had signed off on the report verifying its accuracy, in
spite of the fact Ms. Paskauskiene later admitted she had not
actually reviewed the entire test record.

       . . . The customer audited Microconsult’s procedures,
methods, reports, etc. and had generally complimented us on our
overall audit results and the manner in which we test by our
procedures, etc. It was at the end of the audit that the customer
found the mistake which Ms. Paskauskiene had missed even though
she had signed the test records noting she had reviewed and
verified its accuracy. The customer questioned Myla Tuazon and
me as to how the mistake was made and then not caught on review.

       . . . Thereafter, I attended a March 4, 2011 meeting with
William Bryan, President of Microconsult, Myla Tuazon, the Quality
Assurance Manager and Ms. Paskauskiene. The purpose of the
meeting was to discuss the mistake discovered by the client during
its audit, the mistake Ms. Paskauskiene had failed to catch. When
Ms. Paskauskiene was asked about the mistake revealed by the
client’s audit, Ms. Paskauskiene stated that she never reviewed the
entire test record as she did not have time.

      . . . During the March 4, 2011 meeting, I also brought to Ms.
Paskauskiene’s attention test records from the routine internal audit
that was in process, which is part of Microconsult’s standard
operating procedures and required by the FDA. In my internal audit, I
had found many mistakes on various test records from the fourth
quarter of 2010, which Ms. Paskauskiene had nonetheless
reviewed, signed and dated memorializing that she had allegedly
reviewed the entire test record and that they were accurate. It
appeared she had not reviewed the entire test record as required
because there were just too many errors missed on these test
records. When I asked her why there were so many test records
from October 2010 that contained errors that she had nonetheless
signed and approved, as an example, she stated that maybe she
was distracted during that time because it was her birthday.




                                  11
      An excerpt from Myers’s attached review of Paskauskiene states, “Ensure

you and others are keeping up with documentation, utilizing correct forms,

thoroughly reviewing documentation before you initial or sign for reviewing

paperwork. There are still lots of mistakes being caught during the review

process.”

      Tuazon’s affidavit corroborated Bryan’s and Myers’s accounts of what

transpired on March 4, 2011.

      Also attached to TWC’s motion was a copy of the “appeals folder” from

TWC, authenticated as a public record maintained by TWC by its custodian of

records. Those records show that a TWC hearing examiner found, and the TWC

appeals tribunal agreed, that Paskauskiene was discharged from Microconsult

for “misconduct connected with the work.”       The appeals tribunal made the

following findings of fact:

      The employer discharged the claimant on March 7, 2011 for violating
      known company policies, specifically regarding dishonesty and
      falsifying records. The employer had a disciplinary policy under
      which an employee would be dismissed for dishonesty and
      falsification of company records. The claimant knew the employer’s
      policies in this regard having received and signed for a copy of the
      Employee Handbook before she began her employment on
      June 1, 2010.

      The claimant represented to her employer that she had reviewed
      each page of the reports which had been submitted to her. The
      employer learned from a customer audit that the claimant had not
      reviewed the reports as she had reported by her signature. The
      claimant admitted that she had misrepresented her reviews and had
      not fully reviewed the reports. The employer confronted the claimant
      about her violation of the employer’s rules by letter on March 7, 2011
      and discharged her.


                                       12
      The tribunal thus concluded (1) that, under applicable precedent,

Paskauskiene committed misconduct by misrepresenting to Microconsult that

she had properly reviewed the test reports, (2) that the test results were

important to Microconsult’s interests, and (3) that she should have known she

was obligated to inform Microconsult correctly of her reviews. The tribunal found

Microconsult’s evidence that Paskauskiene said she did not review the reports in

their entirety more persuasive than her testimony that she did not admit she

violated Microconsult’s policy. 5 The tribunal thus affirmed the hearing examiner’s

decision.

Paskauskiene’s Motion for Summary Judgment

      Paskauskiene’s motion for summary judgment asserted that (1) the TWC

decision was not supported by substantial evidence and was arbitrary, (2) there

was no evidence she committed misconduct or falsified reports, and (3) TWC

failed to consider or admit documents that she had timely filed. As part of her

argument, she contended that TWC failed to consider that she was fired because

of a “medically verified illness.”

      Paskauskiene attached an affidavit detailing her training and experience in

FDA-regulated chemical testing. She said that Microconsult did not provide her

adequate training for her position, that she was “very heavily overloaded with . . .

      5
      TWC’s records also indicate that Paskauskiene claimed that she always
reviewed test results in their entirety, that she never said she did not, and that
she was fired without warning when she emailed that she was sick on
March 7, 2011 and could not come back to work until March 14, 2011.


                                        13
work” and had to “review [an] unusual amount of data,” that she caught many

mistakes by others but was never told of any concerns about her work, that

Microconsult created rules that only applied to her and forced her to work

overtime, that she began to complain about her work environment prompting

Microconsult to retaliate against her by performing “spot checks” of her work, and

that the paperwork showed to her on March 4, 2011 could have been taken from

her office and used without her permission and likely was not to be used for

reporting purposes. She also averred that (1) she sent an email to Bryan the

night of March 4, 2011 complaining that she was being retaliated against and

(2) that she hurt her back that night moving sample boxes that she had packed.

According to Paskauskiene, she was out on March 7, 2011 because of a doctor’s

appointment for that back injury.

      Also attached is a separate affidavit from Paskauskiene stating the

following:

             I brought this claim for unemployment benefits before the
      Texas Workforce Commission. I previously attended a hearing
      regarding my unemployment benefits before a hearing officer of the
      [TWC]. At my hearing, I was not permitted to discuss significant
      evidence in my favor as well as present exhibits that I had prepared
      for the hearing. I was also not permitted to testify on my own behalf
      despite my objections otherwise. I firmly believe that had I been
      allowed to present all my evidence and given a fair opportunity to
      rebut Microconsult’s misconstrued allegations then the TWC hearing
      must have resulted in a decision in my favor.

            . . . Microconsult’s claim that I falsified company documents is
      simply not true. At no point did I ever state that I “never read the
      reviews” as Microconsult claims.            During my meeting with
      Microconsult management on March 4, 2011, I explained to William


                                       14
     Bryan, Amie Myers, and Myla Tuazon that the workload had become
     increasingly burdensome. I had requested assistance to keep up
     with the heightened pace of work. Microconsult, however, has
     misconstrued my statements from that meeting to conclude that I
     never reviewed the lab technicians’ reports. This is wholly untrue
     because I have always reviewed the entirety of every report before
     signing it and have never admitted otherwise. More so, during my
     TWC hearings, Myla Tuazon and Amie Myers even specifically
     admitted that they did not believe I had intentionally falsified my
     reviews, see Exhibit M.

            . . . Any errors that I may have committed during the course of
      my reviews would have been no more than the result of
      commonplace mistake, as opposed to falsification as Microconsult
      suggests. I worked hard while at Microconsult, as my former
      coworkers can attest, and I dutifully performed my duties within the
      best of my abilities. With the constant exchange of papers that
      occurs every day at Microconsult, the company’s lack of
      organization, and the rapid turnaround speed expected of us, it
      would have been close to impossible for any reviewer to catch all
      mistakes when reviewing the lab technicians’ reports. I have never
      been reported for workplace misconduct that would otherwise
      suggest I might have falsified reports and I consistently performed to
      company expectations.

   The trial court sustained numerous objections to other summary judgment

evidence proferred by Paskauskiene; she does not complain about any specific

ruling on appeal. Thus, we will discuss only the evidence that the trial court

considered. See Tex. R. App. P. 33.1; Cammack the Cook, L.L.C. v. Eastburn,

296 S.W.3d 884, 889 (Tex. App.––Texarkana 2009, pet. denied).

Analysis

      A person is “disqualified for benefits if [she] was discharged for misconduct

connected with [her] last work.” Tex. Lab. Code Ann. § 207.044(a) (West 2006).

Labor code section 201.012(a) defines “misconduct” as “mismanagement of a



                                       15
position of employment by action or inaction, neglect that jeopardizes the life or

property of another, intentional wrongdoing or malfeasance, intentional violation

of a law, or violation of a policy or rule adopted to ensure the orderly work and

the safety of employees.” Id. § 201.012(a).

      The TWC appeals tribunal found, and TWC presented summary judgment

evidence, that Microconsult’s company policy provided for termination upon

dishonesty or falsification of records, that Paskauskiene’s signature on a test

report indicated that she had reviewed the entire document, that she admitted

she signed at least one such report without reviewing the entire document, and

that Microconsult’s review procedure was required by good manufacturing

practices to protect consumers and ensure that Microconsult was in regulatory

compliance. We conclude and hold that, based on the above, the trial court

properly held as a matter of law that substantial evidence supports TWC’s

decision to deny benefits to Paskauskiene. See Burton v. Tex. Emp’t Comm’n,

743 S.W.2d 690, 693 (Tex. App.––El Paso 1987, writ denied); see also Tex.

Workforce Comm’n, Appeals Policy & Precedent Manual § 140.25(3)–(4)

Dishonesty:     Falsification   of   Record,   TWC    Appeal   No.   3276-CA-76

(Oct. 1, 1996), available at http://www.twc.state.tx.us/ui/appl/mc.pdf (denying

benefits when claimant was discharged for placing supervisor’s initials on

expense account on one occasion and, on four other occasions, had some other

person or persons place the supervisor’s initials on expense accounts, because

even though claimant was entitled to reimbursement, he had known that his


                                        16
supervisor was supposed to approve such expense accounts).                Moreover,

although Paskauskiene asserted in her motion for summary judgment and in her

response to TWC’s motion for summary judgment that the TWC hearing officer

did not allow her to testify or present certain evidence on her behalf, she did not

specify which testimony or evidence she was not allowed to present, nor can we

consider the evidence the trial court did not consider because it granted TWC’s

objections to it. E.g., Kaufman v. Islamic Soc’y of Arlington, 291 S.W.3d 130,

137 (Tex. App.––Fort Worth 2009, pet. denied).

      We conclude and hold that the trial court did not err by granting TWC’s

motion for summary judgment and denying Paskauskiene’s. We overrule her

third and fourth issues.

                                   Jury Demand

      In her first issue, Paskauskiene contends that the trial court erred by

denying her a jury trial because she filed a jury demand and because she was

entitled to a de novo jury trial of her claim under section 2001.173(b) of the

government code.      Tex. Gov’t Code Ann. § 2001.173(b) (West 2008) (“On

demand, a party to a trial de novo review may have a jury determination of each

issue of fact on which a jury determination could be obtained in other civil suits in

this state.”). By its plain language, section 2001.173(b) provides for a jury trial

under the same circumstances as it could be obtained in other civil suits. Id. A

party does not have an absolute right to a jury trial in a civil case. See Green v.

W.E. Grace Mfg. Co., 422 S.W.2d 723, 725 (Tex. 1968); Vann v. Gaines, No. 02-


                                         17
06-00148-CV, 2007 WL 865870, at *3 (Tex. App.—Fort Worth Mar. 22, 2007, no

pet.) (mem. op.).     Summary judgment is a procedure that may be used to

dispose of a case when there are no genuine issues of material fact and only

questions of law exist. See Green, 422 S.W.2d at 725; Vann, 2007 WL 865870,

at *3.     When, as here, no such issues of fact exist to submit to a jury, the

granting of summary judgment will not violate a party’s constitutional right to a

jury trial.   See Green, 422 S.W.2d at 725; Vann, 2007 WL 865870, at *3.

Accordingly, we overrule Paskauskiene’s first issue.

                                    Conclusion

         Having overruled Paskauskiene’s four issues, we affirm the trial court’s

judgment.




                                             TERRIE LIVINGSTON
                                             CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; MEIER and GABRIEL, JJ.

DELIVERED: August 8, 2013




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