dissenting.
Although I did not serve on the panel in this case, I respectfully dissent. See O’Connor v. First Court of Appeals, 837 S.W.2d 94 (Tex.1992).
Public Policy
I agree with Chief Justice McGarry in his conclusion that the panel opinion is erroneous because it creates an affirmative defense unrecognized in Texas Law until this time: the after-acquired evidence defense. See Jordan v. Johnson Controls, Inc., 881 S.W.2d at 371 (McGarry, C.J., dissenting). I would hold that this defense is against public policy because it allows workers to be fired in retaliation for filing a workers’ compensation claim. I do not agree that even if it is taken as true that if an employer fires an employee in retaliation for filing a workers’ compensation claim, the employee should be barred from recovering if the employer performs a post-termination investigation and finds that the employee failed to reveal the existence of an older criminal conviction.
Johnson Controls contends that it should be allowed to fire Jordan without further explanation because it allegedly never would have hired him due to his conviction. However, the fact of the matter is that it did hire Jordan. It eoúld have investigated him to discover prior convictions, but, for whatever reason, it hired him. He then worked for Johnson Controls for two years., I would hold that Jordan was entitled to the protections .against retaliatory firing afforded by the Texas Workers’ Compensation Act.1 If this State must adopt the policy set forth in the majority opinion, it should limit it so that the bar to recovery applies only to those who fail to disclose (1) felonies less than ten years old, or (2) multiple felony convictions.
Summary Judgment Burden
I further agree with Chief Justice McGar-ry that, even if this were an equitable or fair defense, Johnson Controls has not met its summary judgment burden to show that it was entitled to judgment as a matter of law. See Tex.R.Civ.P. 166a. Johnson Controls moved for summary judgment on the ground that the after-acquired evidence doctrine bars2 Johnson’s 8307c retaliatory-firing claim: Jordan cannot recover even if Johnson Controls fired him in retaliation for the good faith filing of a workers’ compensation claim because he obtained his employment by hiding the fact that he had been convicted of a felony.
Johnson Controls moved for summary judgment on the basis of the after-acquired evidence defense and alleged that Jordan is barred from recovery because (1) Jordan materially falsified his employment application regarding a criminal conviction and (2) if it had known about it, it never would have hired him, or would have fired him. The dissent notes that and the panel opinion discusses whether an issue of material fact existed regarding whether Jordan “could have been fired.” I agree with Justice McGarry’s dissent that there is a fact issue regarding whether Jordan could have been fired. I *375also agree that Johnson Controls failed to establish as a matter of law that it never would have hired Jordan had it known of the falsification.
In support of its motion, Johnson Controls attached the affidavit of Don Wilson, the former personnel manager for Johnson Controls. He stated that Johnson Controls would never have hired Jordan had Jordan disclosed his 1972 conviction for armed robbery. I first agree that this issue involves the mental state or intent of Johnson Controls and is not a proper subject for summary judgment. As stated in Garcia v. John Hancock, cited in the dissenting opinion:
In addition to this general cautionary approach to summary judgments, Texas courts have recognized that even greater care should be taken when considering summary judgment motions in select categories of litigation. As discussed in our original opinion, “summary judgment has rarely been viewed as appropriate when the issue is inherently one for the jury or judge, as in cases involving intent, reliance, uncertainty, unliquidated damages, and discretion.” Timothy Patton, SUMMARY Judgments in Texas, § 1.02 (1992); see also El Paso Assocs., Ltd. v. J.R. Thurman & Co., 786 S.W.2d 17, 21 (Tex.App.— El Paso 1990, no writ); Dan Lawson & Assocs. v. Miller, 742 S.W.2d 528, 530 (Tex.App.—Fort Worth 1987, no writ).
Garcia v. John Hancock Variable Life Ins. Co., 859 S.W.2d 427, 436 (Tex.App.—San Antonio 1993, no writ) (emphasis added). I believe the issue of whether Johnson Controls would have hired Jordan had it known of his 1972 conviction is an issue of fact for the jury. See id. This is because what Johnson Controls would have done is not something that is readily controvertible and is something to which only Johnson Controls can attest.3 See Garcia, 859 S.W.2d at 436; El Paso, 786 S.W.2d at 21. I would hold that this is a fact issue regardless of whether Wilson is an “interested witness.” See El Paso, 786 S.W.2d at 21; see generally Tex. R.Civ.P. 166a(c); Jordan, at 370.
Additionally, even though Wilson stated that Jordan would not have been hired, the employment application states that “[cjonvietion of a crime is not an automatic bar to employment — all circumstances will be considered.” This is evidence that Johnson Controls does consider hiring individuals with criminal convictions. In his affidavit, Wilson states that another employee was terminated when it was discovered that he failed to reveal convictions for motor vehicle violations. Although this is evidence that employees are fired for falsifying employment applications, it does not establish that a person with a criminal record would never be hired. If Johnson Controls’ application states that “all circumstances” regarding a criminal conviction would be considered, it is possible that a jury could find that Johnson Controls would consider such factors as the seriousness of the crime or the age of the offense. To the extent that Wilson’s affidavit testimony can be controverted, and I do not agree that it easily can be, I believe this is some controverting evidence. All doubts as to the existence of a genuine issue of material fact are resolved in favor of the non-movant. Roskey v. Texas Health Facilities Comm’n, 639 S.W.2d 302, 303 (Tex.1982). I do not agree that the burden shifted to Jordan to controvert something almost impossible to controvert, nor do I agree that Johnson Controls discharged its summary judgment burden.
. The panel opinion states that Johnson Controls claims it fired Jordan because of excessive absences. It also emphasizes that it does not matter why he was fired: the after-acquired evidence doctrine justifies any termination for any reason. However, inherent in Jordan's claim of retaliatory firing is the allegation that he was fired for filing a workers' compensation claim. Jordan never had the opportunity to present evidence to the jury that, perhaps, his absences were due to his injury.
. The panel opinion states that it merely holds that Jordan’s claim for retaliatory discharge is barred and that it does not hold that employers may discharge those who have filed workers' compensation claims if it is later discovered that the worker falsified his or her employment application. This is a distinction without a difference. The practical effect is the same.
. To the extent that the panel opinion may have relied on federal summary judgment cases such as Redd v. Fisher Controls, 814 F.Supp. 547, 551 (W.D.Tex.1992), to support the notion that summary judgment is proper in cases where the question of whether the employer "would have hired” the employee is an issue, I note that those cases are inapplicable. Summary judgment practice in federal court places the burden on the non-movant to avoid summary judgment where the non-movant would have had the burden of proof at trial. Celotex v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986).