Lisa Schaver Harris v. Jefferson County, Texas and Brad Burnett, Justice of the Peace Pct. 7, 09-13-00581-CV

Background

Plaintiff Lisa Schaver Harris worked as a clerk for Jefferson County under Justice of the Peace Brad Burnett and was terminated in December 2010.
Harris sued Burnett and Jefferson County under 42 U.S.C. § 1983 and sought a declaratory judgment asserting her free speech rights were violated, alleging termination in retaliation for reports she made about Burnett altering government records.
Defendants filed a combined traditional and no-evidence motion for summary judgment, challenging key elements of Harris’s retaliatory-discharge/First Amendment claim (causation, protected speech, disparate treatment, and a protected property interest).
Harris filed her summary judgment response one day before the hearing (November 13, 2013), but the record contains no court order granting leave to file that response late; the hearing was not reported.
The trial court granted the defendants’ motion without specifying grounds; on appeal the court reviewed the no-evidence grounds first and affirmed because Harris failed to timely present evidence raising genuine fact issues on the elements challenged.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Harris’s late-filed summary judgment response was properly before the trial court	Harris claimed the response was filed by agreement and with leave of court, so it should be considered	Defendants argued the response was untimely and not authorized by the court, so it should not be considered	The record shows no leave; court presumed the late filing was not considered and did not consider Harris’s evidence
Whether Harris raised a genuine issue of material fact that her reports caused her termination	Harris contended her evidence showed causation between her reports and the firing	Defendants argued Harris produced no timely evidence on causation as required by the no-evidence motion	No genuine fact issue raised because Harris’s responsive evidence was not properly before the court
Whether Harris engaged in constitutionally protected speech supporting a First Amendment retaliation claim	Harris asserted her reports to HR and the DA were protected speech	Defendants argued Harris failed to produce timely evidence that her speech was protected	Held against Harris for same timeliness/evidentiary reason
Whether Harris showed she had a protected property interest or disparate treatment sufficient to survive the no-evidence motion	Harris claimed a property interest in her job and unequal treatment evidence	Defendants said Harris failed to timely present evidence on property interest or disparate treatment	Court concluded Harris did not timely present prima facie proof and defendants’ no-evidence motion required dismissal

Key Cases Cited

Ford Motor Co. v. Ridgway, 135 S.W.3d 598 (Tex. 2004) (no-evidence summary-judgment review framework)
E. Hill Marine, Inc. v. Rinker Boat Co., 229 S.W.3d 813 (Tex. App.—Fort Worth 2007) (procedural posture on combined motions)
Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572 (Tex. 2006) (nonmovant must produce evidence raising genuine fact issues)
Benchmark Bank v. Crowder, 919 S.W.2d 657 (Tex. 1996) (presumption that trial court did not consider late-filed summary evidence absent record of leave)
INA of Tex. v. Bryant, 686 S.W.2d 614 (Tex. 1985) (untimely summary response not considered without court permission)
Neimes v. Ta, 985 S.W.2d 132 (Tex. App.—San Antonio 1998) (agreement between counsel insufficient for late filing; court leave required)
Stiles v. Resolution Trust Corp., 867 S.W.2d 24 (Tex. 1993) (summary-judgment grounds must be raised in the motion to be relied upon on appeal)
Univ. of Hous. v. Barth, 313 S.W.3d 817 (Tex. 2010) (jurisdiction may be raised on appeal after trial; context for discussing jurisdictional challenges)
San Antonio Water Sys. v. Nicholas, 461 S.W.3d 131 (Tex. 2015) (court addressed jurisdiction following trial on merits; cited for contrast)
Hahn v. Love, 321 S.W.3d 517 (Tex. App.—Houston [1st Dist.] 2009) (discussing elements of First Amendment retaliation claims in summary-judgment context)