concurring.
I respectfully concur only in the judgment of this Court. The majority holds that Elizabeth Louviere judicially admitted that she was terminated from her employment for a reason other than her refusal to perform an illegal act. I believe the admission is, at most, a quasi-admission that provides some evidence that Louviere was not terminated for the reason alleged in her petition, but does not conclusively establish that issue and therefore cannot bar her Sabine Pilot claim. However, since there is no evidence that Louviere was asked to perform an act that would subject her to criminal penalties under Section 32.42(b)(2) of the Texas Penal Code, the trial court did not err in granting summary judgment.
It is clear that Louviere filed an EEOC complaint based upon gender discrimination and violation of the Equal Pay Act, and that she briefly pursued those claims in federal court. These claims were dismissed without prejudice prior to trial. The summary judgment evidence in this case, however, does not establish that Lou-viere’s federal complaint alleged Hearst discharged her in retaliation for filing the EEOC complaint.
To support their claim that Louviere judicially admitted that she had been discharged for a reason other than her refusal to perform an illegal act, the appellees relied exclusively on Louviere’s federal court first amended complaint. That petition never became Louviere’s pleading because the federal court denied leave to file it. The federal court then dismissed the federal action without prejudice and without objection from the defendants. Thus, the appellees rely on a statement in a pleading which was never filed. Further, it is not clear that Louviere’s live pleading at the time the federal case was dismissed included the allegation relied upon by the appellees to conclusively establish that Louviere cannot pursue a Sabine Pilot claim. Additionally, Louviere created a fact issue by controverting the quasi-admission. Louviere’s summary judgment affidavit states that “[djuring the course of my deposition, it became apparent that I did not have a claim for sexual discrimination, that my complaint related entirely to my constructive discharge on account of my refusal to continue to perform an illegal act.”
The summary judgment record shows at best a quasi-admission but does not conclusively establish that Louviere was constructively discharged for a reason other than her refusal to perform an illegal act. See DowElanco v. Benitez, 4 S.W.3d 866, 871 (Tex.App.-Corpus Christi 1999, no pet.). A controverted quasi-admission does not conclusively establish a fact for summary judgment purposes. Hennigan v. I.P. Petroleum Co., Inc., 858 S.W.2d 371, 372 (Tex.1993).
Although I believe the majority errs in treating the rejected first amended peti*757tion as a judicial admission, the trial court did not err in granting summary judgment on the ground that Louviere was not asked to perform an illegal act and no fact issue exists on whether Louviere was asked to perform an act that would subject her to criminal penalties.
Louviere argues that, by selling advertising based upon inflated circulation numbers, The Beaumont Enterprise violated the Texas Penal Code prohibition against intentionally or knowingly selling less than the represented quantity of a property or service. Tex. Pen.Code Ann. § 32.42(b)(2) (Vernon 2003). But Louviere was not selling newspapers; she was selling advertisements that would be published in newspapers. The rate card in the summary judgment record does not establish that the rate paid by advertisers fluctuated with the newspaper’s circulation numbers. Louviere claimed the circulation numbers were misleading because not all of the copies of the newspapers printed were actually distributed to consumers. Even if true, overstating circulation numbers in order to sell advertisement space, in and of itself, does not violate Section 32.42(b)(2). The customer was getting the bargained-for advertising space. Louviere was not “shorting” or selling fewer advertisements than were represented. Thus, she did not refuse to violate Section 32.42(b)(2) of the Penal Code and the termination of her employment is not actionable under Sabine Pilot. See Sabine Pilot Serv., Inc. v. Hauck, 687 S.W.2d 733 (Tex.1985). Because I would affirm the trial court’s judgment for a reason other than that reached by the majority, I concur in the judgment but do not join the opinion of the Court.