Texas Tech University Health Science Center, Paul L. Foster School of Medicine, Richard Lange, M. D., M. B. A., and Pablo Moujan, M. D. v. Victor Tabi Enoh, M. D. , 545 S.W.3d 607 ( 2016 )

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
§
TEXAS TECH UNIVERSITY
HEALTH SCIENCES CENTER, § No. 08-15-00257-CV
PAUL L. FOSTER SCHOOL OF
MEDICINE, RICHARD LANGE, M.D., § Appeal from
M.B.A., AND PABLO MOUJAN, M.D.,
§ 448th District Court
Appellants,
§ of El Paso County, Texas
v.
§ (TC # 2015-DCV-1838)
VICTOR TABI ENOH, M.D.,
§
Appellee.
§
OPINION
This is an interlocutory appeal from the denial of a plea to the jurisdiction. We are
principally asked to decide whether Dr. Victor Enoh was denied procedural due process when
Texas Tech University Health Sciences Center, Paul L. Foster School of Medicine (Texas Tech)
failed to certify that Dr. Enoh successfully completed the final year of a three year
anesthesiology residency program. For the reasons noted, we reverse and render judgment
dismissing the suit for lack of subject matter jurisdiction.
DR. ENOH’S PLED ALLEGATIONS
Dr. Enoh sued Texas Tech, and Drs. Lange and Moujan in Texas state court. An earlier
federal suit involving some of the same parties, and many of the same issues, had previously
been dismissed. The state court petition alleges that Dr. Enoh was accepted into the El Paso
residency program at Texas Tech on July 1, 2011. He pursued a specialty in anesthesiology and
was scheduled to finish the program on June 30, 2014. He successfully completed the first two
years of the program, and alleges that he received excellent evaluations.
The program involved rotations through several sub-specialty areas where the residents
were supervised by different faculty anesthesiologists. Dr. Pablo Moujan supervised Dr. Enoh
on one rotation in July 2013. Dr. Enoh reported to the resident program director, Dr. Anthony
Han, that Dr. Moujan was completely absent for an entire week during that rotation. According
to the petition, Dr. Moujan became upset at being reported, and allegedly stated that he would
make Dr. Enoh’s “life hell.” Later, Dr. Moujan became the associate program director. The
petition alleges that Dr. Moujan demanded that Dr. Enoh be placed on probation and “did
everything possible to see that [Dr. Enoh] failed.”
The petition then complains of several specific actions taken by Texas Tech. First, in
January 2014, Dr. Enoh claims he was informed that he had failed the previous six month portion
of the program. He alleges that he requested the right to appeal this decision, but his request for
an appeal was denied. The petition alleges this denial was contrary to policy, and in lieu of an
appeal, Dr. Enoh was transferred to a hospital in Houston to finish his residency.
Then in May 2014, Texas Tech accused him of misusing a state issued credit card. Dr.
Enoh alleges that he was suspended from May 5, 2014 to June 3, 2014 without any opportunity
for due process. As a part of probation, he was required to perform several extra requirements,
2
which he completed. Nevertheless, on June 19, 2014, he was informed that Texas Tech would
not give him credit for the entire last year of his training. Dr. Enoh appealed that decision and
claims that at a June 30, 2014 hearing, the Texas Tech “staff disparaged and condemned [Dr.
Enoh] and yelled at him in an extremely unprofessional manner.” He further claims that he was
not allowed “to defend himself, present any evidence or testimony, or even speak.” The appeal
was denied and Dr. Enoh claims this prevents him from enrolling in a vascular anesthesiology
fellowship at another institution.
From these factual assertions, Dr. Enoh pleaded five seeks (1) declaratory relief against
Texas Tech1, and (2) temporary and permanent injunctive relief. He further alleges (1) ultra
vires acts; (2) denial of “due course of law”; (3) discrimination based on race, color, and national
origin; and (4) breach of contract. The petition attaches the affidavit of Dr. Hana Teissler MD,
who was formerly an assistant professor at Texas Tech, and the Associate Residency Program
Director. She swore “that to her knowledge” Dr. Enoh completed the requisites for program.
She also recounts that Dr. Moujan “had an intense personal dislike towards” Dr. Enoh and “did
everything possible to fail” him.2
THE PLEA TO THE JURISDICTION AND ITS EVIDENCE
Texas Tech and the individual doctors filed a plea to the jurisdiction which attached
several exhibits and affidavits. We briefly summarize the evidence germane to the issues before
us.
1
In the petition, the declaratory relief count asks for a declaration that Dr. Enoh had a right to present evidence at
the hearing and was wrongly denied that right, breaching his contract with Texas Tech. The request for relief
portion of the petition, however, seeks a broader declaration, including that the adverse action in June 2014 be
declared void, and that because Dr. Enoh met all the clinical and educational requirements for the program, “[he]
should be issued a Certificate of Anesthesiology” from Texas Tech.
2
The petition itself was sworn to by Dr. Enoh, but for the purposes of the plea to the jurisdiction, which we later
explain operates like a motion for summary judgment, we do not consider the allegations in the petition, even if
verified, as substantive evidence. See Laidlaw Waste Sys. (Dallas), Inc. v. City of Wilmer, 904 S.W.2d 656, 660
(Tex. 1995); In re East, 476 S.W.3d 61, 68 (Tex.App.--Corpus Christi 2014)(orig. proceeding).
3
The Graduate Medical Education Program Contract
Dr. Enoh and Texas Tech entered into a “Graduate Medical Education Program
Agreement or Appointment” covering the period from July 1, 2013 to June 30, 2014. Dr. Enoh’s
duties and responsibilities included: (1) providing patient care; (2) demonstrating “interpersonal
and communication skills” sufficient to interact with patients, patients’ families and other health
care professionals; and (3) demonstrating “behaviors that reflect a commitment to continuous
professional development, ethical practice, and understanding and sensitivity to diversity and a
responsible attitude toward his/her patients, profession and society.”
Texas Tech was required under the contract to formally evaluate his knowledge, skills
and professional progress in a written format at least semi-annually. The evaluation criteria were
to be based on the national standards of the respective medical specialty accrediting organization.
The applicable standards here were from the American Board of Anesthesia, the first two of
which focus on professionalism: each candidate for board certification must demonstrate “high
standards of ethical and moral behavior” and “honesty, integrity, reliability, and responsibility.”
The written evaluations were to be made available to the resident who “will be granted
the right to present his/her views and any extenuating circumstances during this
academic/performance review process.” When resident performance or progress was not
deemed satisfactory, Texas Tech could take any number of actions including observation,
probation, suspension, or dismissal. “Each of these actions, as well as the policy and procedure
that should be followed to grieve any adverse action,” were governed by the Adverse Action
Appeals Policy. The program director was also to decide whether the resident would be
reappointed from year to year and advance. The decision not to advance or to not renew a
4
resident’s appointment could be appealed following the protocol specified in the Adverse Action
Appeals Policy.
That appeals policy requires a resident to be given notice of any adverse action within
two working days of the action, with the resident then allowed to make a written request for
appeal within the next five days. An appeal was to be heard by an Appeals Review Committee
which is comprised of faculty members appointed from departments other than that of the
resident. The resident and the program director “shall have the right to address the Appeals
Review Committee and may introduce evidence considered to be relevant and material to the
case. All evidence offered must be reasonably related to the facts and statements concerning the
reasons for the adverse action.”
The Appeals Review Committee under the policy would then issue a report which might
uphold, modify, or overturn the decision made by the program director. If the recommendation
for non-promotion or probation is upheld by the committee, then the program director has the
ultimate decision-making authority. If the recommendation is to overturn the non-promotion or
probation, the committee must provide a specific action plan to be followed by the program
director.
January 2004 Evaluation
A Clinical Competency Committee met on January 21, 2014 and concluded that Dr. Enoh
performed unsatisfactorily on his professionalism criteria during the first six months of his third
year of the program. The basis for the conclusion included the failure to follow up with patients
and leaving the hospital without informing others. Dr. Enoh appealed this conclusion and the
committee re-convened and affirmed its original conclusion. A mentor was selected for a
remediation plan.
5
The Credit Card Issue
On May 19, 2014, Dr. Ham, the program director, sent Dr. Enoh a letter notifying him of
Texas Tech’s intent to dismiss him from the program. The decision was based on Dr. Enoh’s
“unprofessional behavior and conduct” “poor judgment,” and “intentional disregard for policies
and procedures.” The letter details two allegations. The first involved misuse of a state issued
travel credit card. Following a call from a vendor on May 7, 2014, Texas Tech reviewed the
credit card transaction history and noticed several charges for personal items. Dr. Enoh had
previously been admonished about that issue. According to the letter, Dr. Enoh acknowledged
those improper charges to Dr. Han in a telephone call and also confessed that he had allowed his
brother to charge transportation and lodging on the credit card. The second issue pertained to a
false statement made by Dr. Enoh to Methodist Hospital. He had told the hospital that he was ill
and was unable to work his shift, when in fact Dr. Enoh was traveling for a job interview. The
notice letter placed Dr. Enoh on immediate probation, canceled his rotations, and stated Texas
Tech’s intent to dismiss him from program. It also notified him of the right to appeal.
Dr. Enoh exercised his right of appeal, which resulted in an Appeals Committee Report
issued on May 29, 2014. The committee recommended probation, and reinstatement from the
suspension. The probationary terms required Dr. Enoh to purchase certain educational materials,
prepare a presentation for use by the program, and urged the immediate cancellation of the credit
card. The committee’s rationale included documentation that Dr. Enoh’s brother unilaterally
appropriated and used the credit card, and that Dr. Enoh had paid off the outstanding charges.3
3
Information about the intent to dismiss Dr. Enoh from the program, and the suspension of his rotation was sent to
the Texas Medical Board on May 19, 2014. Texas Tech in August 2014 informed the Board that information was
inaccurate.
6
Dr. Enoh is Denied Credit for the Last Year of Residency
In June 2014, the Clinical Competence Committee recommended to the program director
that Dr. Enoh had not met the requirements for completion of his training. The determination
was based on his “repeated pattern of unprofessional behavior and conduct, poor judgment, as
well as an intentional disregard for the School policies and procedures.” This conclusion was
based in part on the credit card issue, but also included additional matters as well. 4 The
evaluation form rated Dr. Enoh’s professionalism-related questions as unsatisfactory. It also
rated other criteria as unsatisfactory, including “appropriate concern for patients and a
commitment to carrying out professional responsibilities”, recognition of “gaps in knowledge
and expertise”, and interpersonal communication skills for “effective exchange of information
and collaboration with patients, their families and other healthcare professionals.” The
committee recommended that Dr. Enoh would need to repeat his third year to successfully
complete the program.
Dr. Enoh was provided a copy of the Clinical Competency Committee assessment and
notified of his right to appeal. In lieu of an appeal, Dr. Enoh was offered a place in Texas Tech’s
Lubbock program.5 He did not accept that offer and pursued the appeal. Dr. Namrata Singh, the
Pediatrics Residency Program Director, chaired the appeals committee. The committee met with
4
The six month appraisal form, approved by the program director and chair of the Clinical Competence Committee,
repeated almost verbatim Dr. Han’s May 19th letter to Dr. Enoh, but included this addition:
In subsequent emails following this action, Dr. Enoh engaged in a series of unprofessional and
disrespectful email exchanges with senior faculty to include our, Interim Chair Dr. Pablo Moujan,
myself, as well as other school administration. He made a series of false and inappropriate
allegations accusing the department of falsifying evaluations and removing documents from his
file. These exchanges taken together with the incidents described above do not reflect the integrity,
professionalism and high moral, ethical standards that we expect of our residents. Accordingly,
Dr. Enoh will continue on probation for the 2014A academic year. He will not receive credit for
his entire CA3 training.
5
Dr. Enoh would not have been able to repeat his third year in El Paso because the program closed at the end of
June 2014.
7
Dr. Han on June 27, 2014. It then met with Dr. Enoh on June 30, 2014. According to
Dr. Singh’s affidavit:
Dr. Enoh actively participated in the discussion and engaged the committee.
Dr. Enoh and the committee met for over an hour. Dr. Enoh presented the
committee with evidence he felt was relevant. Dr. Enoh was given the
opportunity to defend his actions and he availed himself of this opportunity.
Dr. Enoh spoke at length and addressed the committee regarding his probation.
Dr. Singh denied that anyone yelled at Dr. Enoh, and instead he testified that Dr. Enoh became
agitated when asked to respond to specific allegations. Dr. Armando Meza, the Associate Dean
for Graduate Medical Education, was also present at the proceeding and similarly swore that Dr.
Enoh was given the opportunity to present his views. The committee recommended that the
failing evaluation be upheld. Dr. Han accepted that recommendation. In August and September
of 2014, Texas Tech made additional offers to Dr. Enoh to repeat his third year at Texas Tech’s
Lubbock campus, but Dr. Enoh declined.
The Injunction Hearing
The trial court held a hearing on the plea to jurisdiction and Dr. Enoh’s claim for a
temporary injunctive relief on the same day. The trial court took additional testimony at the
hearing, including that of Drs. Han, Meza, Teissler, and Enoh.6
Dr. Meza testified that Dr. Enoh appeared at the June appeal hearing and had an
opportunity to speak. The hearing lasted more than an hour and Dr. Enoh spoke for the majority
of that time. The voice volume of the participants “increased” but he did not recall any
screaming or yelling.
Dr. Enoh testified that prior to the January Clinical Competence Committee meeting, he
had had no significant complaints about his performance. He challenged the committee’s
6
The trial court gave its oral ruling on the plea to jurisdiction before this testimony was taken, but signed the
written order reflecting the ruling sometime later. Both parties freely cite to this testimony in their respective briefs.
We assume, but do not decide, that this testimony is part of the evidentiary record for the plea to the jurisdiction.
8
January decision. The committee then reconvened and reconsidered the decision, but reached
the same conclusion. Regarding the June appeals hearing, we set out his entire testimony with
respect to his ability to speak:
[Defense Counsel]: I want to ask you a little bit about some of the allegations
you’ve made in your file with the Court here, with your petition. Let me ask you
this first. You had an opportunity to speak at that June 2014 appeals committee,
did you not?
[Dr. Enoh]: To speak --
[Defense Counsel]: To speak to the appeals committee on June 30th, 2014?
[Dr. Enoh]: Yes, sir.
[Defense Counsel]: And that hearing lasted for over an hour, did it not?
[Dr. Enoh]: About that.
[Defense Counsel]: And during that hour, you had multiple opportunities to
directly address the appeals committee; is that correct?
[Dr. Enoh]: Not really.
[Defense Counsel]: So during that hour -- it lasted over an hour, the appeals
committee was talking at you the whole time; is that correct?
[Dr. Enoh]: Not entirely.
[Defense Counsel]: Okay. So you did have an opportunity to speak directly to
them?
[Dr. Enoh]: I’ll say yes.
….
[Defense Counsel]: But you did have a chance to speak; is that correct?
[Dr. Enoh]: Not on -- the answer is yes, but I think there is more. I would need to
give an explanation.
[Defense Counsel]: Fair enough, Your Honor -- fair enough, Dr. Enoh. So at the
appeals hearing on June 30th, do you feel like you needed more time?
[Dr. Enoh]: Yes, sir. Not more time, but more room to speak. Not more time, per
se, but lengthwise -- but less interruptions were actually needed.
9
Dr. Teissler testified that at a Clinical Competency Committee meeting, Dr. Moujan was
adamant about failing Dr. Enoh out of the ICU rotation. She left the program on April 1, 2014,
and was not present when the credit card issue arose or the appeals panel met.
The trial court granted the plea to the jurisdiction in part and denied it in part. The trial
court granted the plea as it pertained to Dr. Enoh’s discrimination and breach of contract claims,
and no issue is raised by either party here as to those now dismissed claims. The trial court also
granted the plea as to Texas Tech on the ultra vires claims. The court denied the plea on that
same theory, however, as to Drs. Lange and Moujan. The court also denied the plea as to the
declaratory relief and denial of due course of law theories. The trial court denied the injunctive
relief sought.
ISSUES ON APPEAL
Texas Tech and the doctors bring four issues for review. First, they contend that Dr.
Enoh has not raised a valid due process claim which is necessary for waiving sovereign
immunity. This argument has two parts. First, Dr. Enoh has no liberty or property interest in
completion of a residency program which is a predicate element for the procedural due process
claim (Issue One). The second prong of the argument contends that if any process was due, the
evidentiary record here shows it was provided (Issue Two).
Drs. Mouton and Lange in Issue Three claim that Dr. Enoh has not asserted a viable ultra
vires claim against them. Finally, in Issue Four, Texas Tech and the doctors contend that the
claim for declaratory relief fails because the underlying claims upon which it is premised are
barred.
10
STANDARD OF REVIEW
The issues before us arise from the denial of a plea to the jurisdiction which included
extensive evidentiary support. A plea to the jurisdiction is an appropriate means to challenge the
trial court’s subject matter jurisdiction of a cause of action. Bland Independent School Dist. v.
Blue, 34 S.W.3d 547, 554 (Tex. 2000); see Texas Department of Transp. v. Jones, 8 S.W.3d 636,
637-38 (Tex. 1999). A governmental unit’s sovereign immunity deprives a trial court of subject
matter jurisdiction. Texas Dept. of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225-26 (Tex.
2004); Tirado v. City of El Paso, 361 S.W.3d 191, 194 (Tex.App.--El Paso 2012, no pet.); see
Prairie View A & M Univ. v. Chatha, 381 S.W.3d 500, 512 (Tex. 2012)(“Sovereign immunity
bars suits against the state and its entities, and this immunity remains intact unless surrendered in
express and unequivocal terms by the statute’s clear and unambiguous waiver.”). Texas Tech
and the state actors who work for it are protected by sovereign immunity other than for claims
for which immunity has been waived. Tex. Parks & Wildlife Dep’t v. Sawyer Trust, 354 S.W.3d
384, 388 (Tex. 2011); Franka v. Velasquez, 332 S.W.3d 367, 382-83 (Tex. 2011)(state actors
sued in official capacity were entitled to derivate immunity). We review the issue of whether a
trial court has subject matter jurisdiction de novo. Miranda, 133 S.W.3d at 226-27; State Dept.
of Highways and Public Transp. v. Gonzalez, 82 S.W.3d 322, 327 (Tex. 2002).
When a plea to the jurisdiction challenges only the sufficiency of the pleadings, we
determine whether the plaintiff has met his burden by pleading facts that affirmatively
demonstrate the trial court’s subject matter jurisdiction. Miranda, 133 S.W.3d at 226. But we
construe the pleadings liberally in favor of the plaintiff and look to the pleader’s intent, and
accept as true the factual allegations in the pleadings. Id. at 226, 228. If the pleadings are
insufficient to establish jurisdiction but do not affirmatively demonstrate an incurable defect,
11
then the issue is one of pleading sufficiency and the plaintiff should be afforded the opportunity
to amend. Id. at 226-27. However, if the pleadings affirmatively negate the existence of the trial
court’s jurisdiction, then a plea to the jurisdiction may be granted without allowing the plaintiffs
an opportunity to amend. Id.
When a plea to the jurisdiction includes evidence, and the jurisdictional challenge
implicates the merits of the plaintiff’s cause of action, the trial court should review the relevant
evidence to determine whether a fact issue exists. Miranda, 133 S.W.3d at 227, citing Bland Ind.
Sch. Dist., 34 S.W.3d at 555. If the evidence raises a fact question regarding the jurisdictional
issue, a plea to the jurisdiction may not be granted and the fact finder should resolve the fact
issue. Id. at 228. However, if the relevant evidence is undisputed or fails to raise a fact question
on the jurisdictional issue, then the plea to the jurisdiction may be ruled upon as a matter of law.
Id. In this way, our review of an evidentiary based plea to the jurisdiction mirrors that of a
summary judgment motion under TEX.R.CIV.P. 166a(c). Miranda, 133 S.W.3d at 228. The
Miranda court explained “[b]y requiring the [governmental entity] to meet the summary
judgment standard of proof in cases like this one, we protect the plaintiffs from having to ‘put on
their case simply to establish jurisdiction.’” Id. But if there is no fact question on the jurisdiction
issue, the trial court should rule on the plea to the jurisdiction as a matter of law. Id.
PROCEDURAL DUE PROCESS IN RESIDENCY PROGRAMS
Texas Tech’s first two issues challenge Dr. Enoh’s procedural due process claim. The
constitutional claim is essential to Dr. Enoh’s pleading as it the means by which he avoids the
sovereign immunity bar. See Stone v. Texas Liquor Control Bd., 417 S.W.2d 385, 385-86 (Tex.
1967)(noting deprivation of constitutional right as providing basis for review of agency
decision); McFadden v. Gideon, 639 S.W.2d 43, 44 (Tex.App.--El Paso 1982, writ ref’d
12
n.r.e.)(same). “Procedural due process imposes constraints on governmental decisions which
deprive individuals of ‘liberty’ or ‘property’ interests within the meaning of the Due Process
Clause of the Fifth or Fourteenth Amendment.” Mathews v. Eldridge, 424 U.S. 319, 332, 96
S.Ct. 893, 901, 47 L.Ed.2d 18 (1976). “In procedural due process claims, the deprivation by
state action of a constitutionally protected interest in ‘life, liberty, or property’ is not in itself
unconstitutional; what is unconstitutional is the deprivation of such an interest without due
process of law.” Zinermon v. Burch, 494 U.S. 113, 125, 110 S.Ct. 975, 983, 108 L.Ed.2d 100(1990)[citations omitted][Emphasis in original). The constitutional claim here is brought under
the Texas “due course of law” clause. The textual differences between the Texas provision and
the Fifth Amendment to the U.S. Constitution are “without meaningful distinction” and Texas
courts can look to federal due process jurisprudence as persuasive authority. University of Tex.
Med. Sch. v. Than, 901 S.W.2d 926, 929 (Tex. 1995).
Any procedural due process claim starts with a two-step process. First, we must
determine whether the interest being asserted rises to the level of a “property” or “liberty”
interest. Board of Regents of State Colleges v. Roth, 408 U.S. 564, 569-70, 92 S.Ct. 2701, 2705,
33 L.Ed.2d 548 (1972); Than, 901 S.W.2d at 929. If the answer to that question is yes, then we
must weigh the competing interests of the individual and the state to determine what process is
constitutionally required. Than, 901 S.W.2d at 929.
Texas Tech appropriately begins its analysis with the question of whether Dr. Enoh had a
property or liberty interest in the residency program. It suggests that he does not, and therefore
any due process claim is foreclosed. Its arguments boil down to this: (1) there is no recognized
property or liberty interest in a residency program; (2) any interest is further diminished because
this was effectively a dispute over a grade, as distinct from a disciplinary matter; and (3)
13
Dr. Enoh was offered the chance to repeat his failed third year, so the interest here is different
than being expelled from the program.
To better appreciate the issue, we briefly digress to explain how physicians complete
their training. After graduation from an accredited medical or osteopathic school, graduates will
seek out a residency program. Joseph H. King, The Standard of Care for Residents and Other
Medical School Graduates in Training, 55 AM. U. L. REV. 683, 691 (2006). The residency is a
proctorship where the resident learns by doing, with increasing responsibility as the resident
progresses through the program. Id. at 697. With a medical degree and successful completion of
PGY-1, some states will issue a license allowing one to practice medicine. Id. at 691, n. 33.7
Most residents, however, strive to complete the program so they might become board certified in
some specialty area. Id. at 691-92. This case deals with anesthesiology. The American Board of
Anesthesiology administers board certifications in that field. In addition to passing a written test,
an applicant for board certification in anesthesiology must have successfully completed an
accredited anesthesiology residency program.
Residents work under contract with any accredited graduate medical program. Robert N.
Wilkey, The Non-Negotiable Employment Contract-Diagnosing the Employment Rights of
Medical Residents, 44 CREIGHTON L. REV. 705, 715-18 (2011). While resident contracts vary
between programs, they must address certain criteria from the Accreditation Council for
Graduate Medical Education (“ACGME”). Id. at 724-25. ACGME also sets standards for
accredited programs. Id. at 726. One of those standards requires a Clinical Competency
Committee with a minimum of three program faculty members to evaluate the residents semi-
annually. ACGME Common Program Requirements, V.A.1.(a) & (b)(1)(a).
7
The length of the program will depend on the specialty or sub-specialty being pursued. The first year is referred to
as PGY-1 (“post graduate year”), and the years thereafter as PGY-2, PGY-3 and so on.
14
http://www.acgme.org/Portals/0/PFAssets/ProgramRequirements/CPRs_07012016.pdf (last
visited August 5, 2016).
Residency training is hands-on, with the resident physicians providing direct patient care
under varying degrees of supervision. King, at 697. Residents put in long hours. Wilkey, at 709,
n.23. (collecting literature on hours worked). Residents are paid for the work they do, but the
pay scale is far below what a doctor in private practice might expect.8
Against this backdrop, Texas Tech first contends that residents have no firmly established
property or liberty interests to complete their residency program. Several cases peripherally
address this issue. In Shaboon v. Duncan, 252 F.3d 722, 731 (5th Cir. 2001) the court found no
protectable liberty interest for a resident who was dismissed “for reasons related to her fitness to
perform as a doctor.” Shaboon in turn principally relies on Board of Curators, Univ. of Mo. v.
Horowitz, 435 U.S. 78, 98 S.Ct. 948, 55 L.Ed.2d 124 (1978), where the court rejected a due
process challenge by a medical school student who was dismissed from the school because of
academic performance. The court in Horowitz, however, ultimately assumed the existence of a
liberty interest, but found the process given to the student was given was sufficient. 435 U.S. at
84-85, 98 S.Ct. at 952.
We are also guided by the Texas Supreme Court’s decision in University of Tex. Med.
Sch. v. Than, which holds that there is a liberty interest in a state institution’s graduate education
program giving rise to procedural due process protections. 901 S.W.2d 926, 930 (Tex. 1995).
Than involved a medical student (as distinct from a resident) who was dismissed from medical
school for cheating on an exam. Id. at 928. The court concluded that a medical student charged
8
Dr. Enoh in his final year at Texas Tech was paid $49,443.00 per annum plus benefits. He claimed to have had a
waiting job offer (had he been given his certificate of completion) paying $300,000 per year. The median salary for
all physicians in America for 2015 was $187,200 per year. The median salary for specialists in anesthesiology for
2014 was $443,859. See Bureau of Labor Statistics, Occupational Outlook Handbook, Physicians and Surgeons,
http://www.bls.gov/ooh/healthcare/physicians-and-surgeons.htm#tab-5 (last visited August 3, 2016).
15
with academic dishonesty faces damage to his or her reputation, the preclusion of gaining
admittance at other institutions, and the loss of the chosen profession. Id. at 930. Noting the
stigma likely to follow that determination, the court recognized a “constitutionally protected
liberty interest in [the student’s] graduate education” such that they must be afforded procedural
due process. Id.
Our record is complicated here because Dr. Enoh’s present pleading claims only a
property interest in obtaining a certificate of completion. Both Than and Shaboon are liberty
interest cases. Property interests “are created and their dimensions are defined by existing rules
or understandings that stem from an independent source such as state law.” Cleveland Bd. of
Education v. Loudermill, 470 U.S. 532, 538, 105 S.Ct. 1487, 1491, 84 L.Ed.2d 494 (1985)
(citations and internal quotations omitted). Neither party here extensively addresses how Texas
law might create a property interest. Other courts are split on the existence of a property interest
in residency programs, but those decisions turn on the respective controlling state law. See
Stretten v. Wadsworth Veterans Hosp., 537 F.2d 361, 365 (9th Cir. 1976)(“The resident’s interest
is important enough that he should have notice of his deficiencies, should have an opportunity to
examine the evidence against him, and should be allowed to present his side of the story to the
decision-maker.”); Ong v. Tovey, 552 F.2d 305, 308 (9th Cir. 1977)(same); Ezekwo v. New York
City Health & Hosps. Corp., 940 F.2d 775, 783 (2d Cir. 1991)(“Accordingly, we agree with the
district court that Ezekwo’s expectation of performing the duties of Chief Resident was
reasonable and well founded and rose to the level of a property interest entitled to the protections
afforded by the Due Process Clause.”); but see Trotter v. Regents of U. of New Mexico, 219 F.3d
1179, 1184 (10th Cir. 2000)(Under New Mexico law, medical student failed to identify either
property or liberty interest arising under that state’s laws); Davis v. George Mason U., 395
16
F.Supp.2d 331, 336 (E.D.Va. 2005), aff’d, 193 Fed. Appx. 248 (4th Cir. 2006)(not designated for
publication)(plaintiff did not show property interest under Virginia law to continued enrollment
in graduate program). The Texas law cited to us does not address the issue directly. Than, 901
S.W.2d at 930, n.1 (“Because we conclude that Than at least has a liberty interest in his graduate
education, we need not decide and express no opinion on whether graduate students have a
property interest in their education at state universities.); Tobias v. U. of Texas at Arlington, 824
S.W.2d 201, 209 (Tex.App.--Fort Worth 1991, writ denied), cert denied, 506 U.S. 1049(1993)(“Although we have serious doubts as to a constitutionally protectable property right in a
grade or in a grade grievance procedure, we need not decide that issue in this case.”); Smith v.
Davis, 507 Fed. Appx. 359, 363 (5th Cir. 2013)(unpublished)(deciding only that property interest
in a grade was not “clearly established” and thus instructor was entitled to qualified immunity).
The distinction between property and liberty interests is complicated further by our
standard of review for pleas to the jurisdiction. We cannot dismiss the case for a pleading
deficiency which might be corrected, and instead must remand the case. Accordingly, we view
the case as both involving a claimed property and liberty interest. But given the record and
briefing in this case, we will merely assume without deciding that there is a property or liberty
interest worthy of procedural due process protection. We do so because on the unrebutted
factual showings made by Texas Tech, Dr. Enoh was provided all the process that is due for such
interests, assuming that they exist.9
9
We are not the first court to choose this path. In Regents of U. of Michigan v. Ewing, 474 U.S. 214, 222-23, 106
S.Ct. 507, 511-12, 88 L.Ed.2d 523 (1985), the court assumed the existence of a property right giving rise to a
substantive due process claim, and then held the defendant school had not violated the substantive due process rights
of the plaintiff. It did so following Justice Brandeis’ admonition not to “‘formulate a rule of constitutional law
broader than is required by the precise facts to which it is to be applied.’” Ashwander v. TVA, 297 U.S. 288, 347, 56
S.Ct. 466, 483, 80 L.Ed. 688 (1936)(concurring opinion); see also Horowitz, 435 U.S. 78, 84-85 (1978)(assuming
but not deciding liberty or property interest of medical student); Davis v. Mann, 882 F.2d 967, 974 (5th
Cir.1989)(raising property interest question, but ultimately deciding case on sufficiency of process provided resident
dismissed from dental program); Tobias, 824 S.W.2d at 209 (assuming existence of property interest). If we were to
17
Sufficiency of Process Given
The amount of process due is measured by a “flexible standard” that turns on the
“practical requirements of the circumstances.” Than, 901 S.W.2d at 930, citing Mathews v.
Eldridge, 424 U.S. at 334, 96 S.Ct. at 902, and Goss v. Lopez, 419 U.S. 565, 574, 95 S.Ct. 729,
736, 42 L.Ed.2d 725 (1975). This flexible standard includes: “(1) the private interest that will be
affected by the official action; (2) the risk of an erroneous deprivation of such interest through
the procedures used, and the probable value, if any, of additional or substitute procedural
safeguards; and (3) the government’s interest, including the function involved and the fiscal and
administrative burdens that the additional or substitute procedural requirement would entail.”
Than, 901 S.W.2d at 930, citing Mathews, 424 U.S. at 335, 96 S.Ct. at 903.
In deciding the amount of process that is due, two additional questions must be answered.
First, is a residents’ dismissal more akin to a student-teacher issue, or an employee-employer
matter? Under prevailing case law, the former is entitled to less process than the latter. Second,
is the action an academic determination or is it a disciplinary proceeding? Again, the former is
entitled to less process than the latter. We conclude the issues here find their origin in the
student-teacher relationship, and while somewhat less clear, we conclude this was an academic
decision. But even as a disciplinary matter, we find the evidence here sufficient to show the
process was sufficient given the challenges asserted by Dr. Enoh.
Educational Versus Employment Situations
Dr. Enoh worked regular shifts, provided medical services to patients, and was paid an
annual salary. If viewed as employment relationship, procedural due process would require pre-
and post-termination procedures. Loudermill, 470 U.S. at 547-48 (describing level of formality
make far reaching holdings on the existence or non-existence of property or liberty interests of resident students, we
would likewise venture further than necessary to decide the instant dispute. These are significant issues that deserve
a more complete record and briefing than we have before us.
18
for each type procedure). At the same time, Dr. Enoh was supervised by clinical professors in an
educational environment. Under Fifth Circuit case law, “medical residents are not employees
protected by the due process clause.” Shaboon, 252 F.3d at 732, citing Davis v. Mann, 882 F.2d
967, 974 (5th Cir. 1989). This is so because a “residency program is distinct from other types of
employment in that the resident’s ‘work’ is what is academically supervised and evaluated.” 882
F.2d at 974. “Successful completion of [a] residency program depends upon subjective
evaluations by trained faculty members into areas of expertise that courts are poorly equipped to
undertake in the first instance or to review.” Id. at 974. Accordingly, residents are treated like
students for due process purposes, and “are not entitled to as much procedural protection under
the Fourteenth Amendment as employees who are terminated from their jobs.” Id. at 973. We
agree with Shaboon’s reasoning in this regard.
Academic vs. Discipline Decisions
When a student is dismissed for disciplinary reasons, the Fourteenth Amendment requires
that “the student be given oral or written notice of the charges against him and, if he denies them,
an explanation of the evidence the authorities have and an opportunity to present his side of the
story.” Goss, 419 U.S. at 581, 95 S.Ct. at 740. Presenting the student’s side of the story may,
however, include no more than requiring at least an “informal give-and-take” between the
student and the administrative body that would give the student “the opportunity to characterize
his conduct and put it in what he deems the proper context.” Id., at 584, 95 S.Ct. at 741. But
academic dismissals “call[ ] for far less stringent procedural requirements,” Horowitz, 435 U.S.
at 86, 98 S.Ct. 948. In Horowitz, a student academically dismissed from medical school,
received sufficient process when the school informed her of the faculty’s dissatisfaction, and the
ultimate decision was made carefully and deliberately. Id. at 85, 98 S.Ct. at 952.
19
Horowitz based this conclusion on a number of arguments. First, courts have historically
avoided imposing hearing requirements challenging academic dismissals. Id. at 87, 98 S.Ct. at
953. Next, while “suspensions of students for disciplinary reasons have a sufficient resemblance
to traditional judicial and administrative factfinding,” a school itself is fundamentally “an
academic institution, not a courtroom or administrative hearing room.” Id. at 88-89, 98 S.Ct. at
954. “Academic evaluations of a student, in contrast to disciplinary determinations, bear little
resemblance to the judicial and administrative fact-finding proceedings to which we have
traditionally attached a full-hearing requirement” and they require “an expert evaluation of
cumulative information and is not readily adapted to the procedural tools of judicial or
administrative decisionmaking.” Id. at 89-90, 98 S.Ct. at 955. Third, the court was concerned
that imposing court-like procedures into an educational environment would damage the faculty
student relationship upon which the educational system depends. Id. The more advanced the
educational environment, the more these policy concerns apply. Id.Thus, the court concluded that in the case of dismissal for academic reasons, “a hearing is
not required by the Due Process Clause of the Fourteenth Amendment.” Horowitz, 435 U.S. at86 n.3, 98 S.Ct. at 953; Tobias v. Univ. of Tex. at Arlington, 824 S.W.2d 201, 209 (Tex.App.--
Fort Worth, 1991, writ denied); but see Than, 901 S.W.2d at 931 (noting distinction but
reserving ruling on difference in degree of process which might be due). But more limited
process does not mean no process. Students who are academically dismissed must still “be given
some meaningful notice and an opportunity to respond.” Davis, 882 F.2d at 975, citing Mathews,
424 U.S. at 333, 96 S.Ct. 893; see also Horowitz, 435 U.S. at 85, 98 S.Ct. at 948 (holding that
student received all the due process that the Fourteenth Amendment required where “[t]he school
20
fully informed [her] of the faculty’s dissatisfaction with her clinical progress and the danger that
this posed to timely graduation and continued enrollment.”).
This case does not fit neatly as a dismissal for academic reasons or misconduct. The
Texas Supreme Court in Than had little trouble concluding that cheating on a test was a
disciplinary matter. Than, 901 S.W.2d at 931. And misuse of a credit card, particularly as found
here, carries similar overtones of wrongful conduct. But academic dismissals can include
expulsion for more than simply bad grades. It may include reasons such as personal hygiene and
tardiness as these “may be as important factors in a school’s determination of whether a student
will make a good medical doctor as the student’s ability to take a case history or diagnose an
illness.” Horowitz, 435 U.S. at 91 n. 6, 98 S.Ct. at 955; see also Perez v. Texas A&M University
at Corpus Christi, 589 Fed.App’x 244, 249 (5th Cir. 2014)(“[c]ourts have frequently concluded .
. . that absences and tardiness in the higher education context may relate to a student’s ability to
perform academically and professionally.”). Academic dismissals might also include
interpersonal conflicts. Hennessy v. City of Melrose, 194 F.3d 237, 251 (1st Cir.1999)(student
teacher deemed to be dismissed for academic reasons based on interpersonal confrontations with
staff which would impair “his capacity to function professionally in a public school setting.”).
The United States Court of Appeals for the Seventh Circuit had “no difficulty” deciding that a
medical resident was dismissed for academic reasons because he failed to disclose on his
application an earlier dismissal from another residency program. See Fenje v. Feld, 398 F.3d
620, 625 (7th Cir. 2005); see also Al-Dabagh v. Case W. Reserve U., 777 F.3d 355, 358 (6th Cir.
2015), cert. denied, 135 S.Ct. 2817 (2015)(asking professor to lie about attendance, inappropriate
behavior at party, and conviction for DWI were professionalism concerns ill-suited for judicial
resolution).
21
A federal district court surveying the law in this area concluded that courts have found a
dismissal as academic “where a student’s scholarship or conduct reflects on the personal
qualities necessary to succeed in the field in which he or she is studying and is based on an at
least partially subjective appraisal of those qualities.” Allahverdi v. Regents of U. of New
Mexico, 05-277 JB/DJS, 2006 WL 1313807, at *13 (D.N.M. Apr. 25, 2006). That definition fits
the situation here, because one of the standards by which the program judged its candidates, and
which is required by the American Board of Anesthesia, is professionalism. Texas Tech
concluded that Dr. Enoh did not meet the standards for professionalism, which at least partially
include subjective appraisals.
Given the circumstances, we conclude that Dr. Enoh received all the process that was
due. Texas Tech’s first action taken in January resulted in Dr. Enoh not passing the first half of
his PGY-3 training. His petition acknowledges that he received notice of this decision. A
review form states that he refused to sign the acknowledgment, so the form, which explains the
criticisms, was at least available to him. 10 He in fact challenged the Clinical Competency
Committee’s initial determination, and the committee reconvened with a larger panel and
reaffirmed the decision. It directed his mentor to develop a remediation plan.
Dr. Enoh complains that he was not given copies of various emails that circulated
between members of the teaching staff about him. He also complains that he was not allowed
to attend and participate in the Clinical Competency Committee meeting. These arguments
implicate the burden to the institution which is part of the procedural due process inquiry.
Horowitz, 435 U.S. at 90, 98 S.Ct. at 955. We can easily envision the chilling effect on the open
10
A comments section to the form states: “During the Clinical Competency Committee meeting on January 21st,
4:00 PM, it was recognized that Dr. Enoh performed unsatisfactory in professionalism during the Part B of 2013. Dr.
Enoh received marginal pass for his remedial rotation for SICU. His evaluation reported unprofessionalism. During
his regional anesthesia rotation, he did not follow up the patients and left the work place without telling. The issues
of poor work ethics and attitude have been raised by faculties in various areas.”
22
discussion of a student-doctor’s competence if the student-doctor must be present. We can also
envision the chilling effect on inter-department communications if all of those communications
must be turned over to the student as if they were discoverable matters. More importantly, the
Clinical Competency Committee serves only an advisory role. The actual decision to advance a
resident resides with the program director. Dr. Enoh is essentially seeking to impose procedural
due process burdens on an advisory board when he acknowledges that he had access to, and
frequent communications with, the program director who was the actual decision-maker.
We also are less sure of the significance of the January decision in light of later events.
In June, Dr. Enoh was found to have failed the second half of his third year based on events that
occurred after the January decision. By failing his last six month term he would not have been
given a certificate of completion in any event.11 Dr. Enoh’s petition does not seek credit for the
first half of PGY-3; rather it seeks to compel Texas Tech to issue a certificate of completion for
the entire third year.
The next event referenced in the petition is Texas Tech’s May 2014 notice of suspension
and intent to dismiss Dr. Enoh from the program. He appealed that action and partially
prevailed, obtaining his privileges back, avoiding dismissal, and then meeting the terms of a
probation.12
The final issue involves the Clinical Competence Committee’s recommendation in June
2014 that Dr. Enoh had not successfully completed the last half year of the program and should
not receive credit for the final year of his residency. That determination was based on the credit
11
One requirement for board certification from the American Board of Anesthesiology is a satisfactory rating in
final six month period of anesthesiology residency rotation. Thus even if the first half of the final year was
satisfactorily completed, Dr. Enoh would still not have been eligible to sit for the written board certification testing.
12
In that time period, Texas Tech concedes that it improperly notified the Texas Medical Board that Dr. Enoh had
been dismissed from the program. Texas Tech later corrected the misinformation. Dr. Enoh does not allege how
any different process would have prevented that mistake, and we attach no significance to it from the standpoint of
the procedural due process claim.
23
card issue but also included additional matters, such as inappropriate communications with the
faculty, failing to show appropriate concerns for patients, recognizing his gaps in knowledge, and
lack of interpersonal communication skills. While his petition claims he did not have a right to
speak or present any evidence during the appeal, the sworn testimony and affidavits show
otherwise. Dr. Enoh spoke for most of the hearing. At best, he testified that his presentation was
interrupted. We are aware of no authority that requires as a matter of due process the right to
speak unchallenged in any setting, much less an informal one as was at issue here. In fact, the
essence of what procedural due process requires is a give and take.13
At the hearing below, Dr. Enoh also contended that he never received adequate notice of
the issue that was actually before the appeals committee. The letter that Dr. Han sent advising
him that he would not receive credit for PGY-3 states: “As a result of you being placed on
consecutive probations during Part B 2013 and Part A 2014 academic years, you will not receive
credit for your CA 3 training.” [Emphasis added]. Testimony at the injunction hearing,
however, showed that Dr. Enoh was not placed on probation by the Clinical Competency
Committee; rather they simply recommended that he receive an unsatisfactory rating. From this
discrepancy, Dr. Enoh reasons he was given inadequate notice of the adverse action because he
did not know what the real issue was before the appeals committee. But the same letter attached
the actual clinical competency report which summarizes the underlying complaints about Dr.
Enoh’s professionalism. While Texas Tech officials may have misused the term “probation” in
describing their actions, they informed Dr. Enoh of the factual issues that led to their decision.
13
Dr. Enoh also emphasizes that Texas Tech did not follow its own policies in the appeal process. The procedural
due process inquiry, however, focuses on what is constitutionally required, and not whether particular written
policies were followed. See Shah v. U. of Texas S.W. Med. Sch., 54 F. Supp. 3d 681, 706 n.15 (N.D. Tex. 2014);
Jackson v. Texas S. U.-Thurgood Marshall Sch. of Law, 231 S.W.3d 437, 440 (Tex.App.--Houston [14th Dist.]
2007, pet. denied).
24
Because Texas Tech demonstrated that Dr. Enoh received all the process that was due, he
has not asserted a viable procedural due process claim that can overcome Texas Tech’s sovereign
immunity. We accordingly sustain Issue Two.
ULTRA VIRES
Dr. Enoh alleged that Drs. Moujan and Lange acted arbitrarily, capriciously, and outside
their legal authority “by failing to comply with the Appeals Policy and by denying [Dr. Enoh]
due process.” Suits that require state officials to comply with statutory or constitutional
provisions are not prohibited by sovereign immunity. Heinrich, 284 S.W.3d at 372. To fall
within this “ultra vires” exception, however, a suit must not complain of a government officer’s
exercise of discretion, but instead must allege, and ultimately prove, that the officer acted
without legal authority or failed to perform a purely ministerial act. Id. “Thus, ultra vires suits
do not attempt to exert control over the state--they attempt to reassert the control of the state.”
Id.
Applying these precepts, we conclude the trial court erred in not sustaining the plea to the
jurisdiction as to both Drs. Moujan and Lange. We have already concluded that for the actions
raised in the petition, Dr. Enoh received sufficient process. Accordingly, neither Dr. Moujan nor
Dr. Lange could be guilty of ultra vires act resulting in the deprivation of procedural due process.
That leaves Dr. Enoh’s allegation that the doctors committed ultra vires acts in following
Texas Tech’s policy for appeals. Nothing in the pleading explains what ministerial duty these
specific doctors failed to discharge in regard to the appeal process. The evidence from the plea
to the jurisdiction shows that other staff members handled the appeals. We conclude that Drs.
Moujan and Lange have shown there is no factual issue raising a valid ultra vires claim as to
them. We therefore sustain Issue Three.
25
DECLARATORY RELIEF
In Issue Four, Texas Tech contends that the declaratory relief sought in the petition
cannot overcome Texas Tech’ sovereign immunity. The Uniform Declaratory Judgment Act
(UDJA) allows parties “to settle and to afford relief from uncertainty and insecurity with respect
to rights, status, and other legal relations.” TEX.CIV.PRAC.&REM.CODE ANN. § 37.002(b)(West
2015). But the UDJA does not enlarge a trial court’s jurisdiction. City of El Paso v. Heinrich,
284 S.W.3d 366, 370-71 (Tex. 2009). In particular, other than as specifically allowed, the UDJA
does not allow parties to circumvent the State’s sovereign immunity by re-characterizing a
barred suit as one that is not. See Texas Natural Res. Conservation Comm’n v. IT-Davy, 74
S.W.3d 849, 855 (Tex. 2002); Koch v. Texas Gen. Land Off., 273 S.W.3d 451, 455 (Tex.App.--
Austin 2008, pet. denied). Thus, immunity will bar even an otherwise proper declaratory relief
suit that has the effect of establishing a right to relief against the State or its political subdivisions
for which the Legislature has not waived immunity. Sawyer Trust, 354 S.W.3d at 388. Id.
The Texas Supreme Court’s decisions in City of El Paso v. Heinrich and Texas Dept. of
Transp. v. Sefzik, 355 S.W.3d 618, 620 (Tex. 2011) guide us here. In Heinrich, a pensioner sued
the City of El Paso and several government officials, claiming they violated her statutory rights
when they reduced her pension benefits. 284 S.W.3d at 369-70. The suit sought a declaration
that the defendants acted without authority in reducing the benefits. Id. The supreme court held
that claim “cannot be brought against the state, which retains immunity, but must be brought
against the state actors in their official capacity.” Id. at 373. The court thus allowed the
pensioner to pursue her claims for prospective relief against the state officials, but required the
dismissal of the claims against the city and the other governmental entities. Id. at 379-80. The
issue arose again in Texas Dept. of Transp. v. Sefzik when a sign company sought a declaration
26
against TXDOT that the company was entitled to an administrative hearing from the denial of its
application to place a sign. 355 S.W.3d at 620. Only TXDOT was sued in that case. The
supreme court concluded the declaratory relief likewise should be dismissed, holding that “the
UDJA does not waive the state’s sovereign immunity when the plaintiff seeks a declaration of
his or her rights under a statute or other law.” Id. at 621. The UDJA would, however, waive
sovereign immunity for declaratory judgment actions that challenge the validity of an ordinance
or statute. Id. at 622.14 In this way, ultra vires and declaratory relief claims are interconnected,
with the relief sought dictating which defendant is an appropriate party to each type of claim.
Applying these principles, we conclude the trial court erred in not dismissing the
declaratory relief claim as to Texas Tech. Dr. Enoh does not challenge the validity of any statute
or ordinance, but rather only seeks compliance with the graduate program contract and the
policies that are attendant to that contract. Accordingly, Texas Tech is not a proper party to that
claim. We have previously addressed the ultra vires claims as to the individual defendant
doctors. While an ultra vires claim might be appropriate to compel compliance with non-
discretionary duties, the claims against the individual defendant doctors are either unrelated to
the appeals process, or the ultimate relief sought goes well beyond compelling a non-
discretionary duty (i.e. it seeks to compel the imposition of a passing grade which is in part
subjectively judged). For this reason, we sustain Issue Four.
CONCLUSION
We decline to resolve Issue One which contends that Dr. Enoh lacks any property right,
but sustain Issue Two and conclude that Texas Tech and the defendant doctors provided any
14
The Supreme Court found an explicit waiver of immunity for this class of declaratory relief claims in Section
37.006(b)’s language requiring the joinder of a governmental unit for any proceeding that involves the validity of a
municipal ordinance or franchise, and service of notice of the suit on the attorney general for an suit alleging that a
statute, ordinance, or franchise is unconstitutional. Id. at 622, quoting TEX.CIV.PRAC.&REM.CODE ANN. §
37.006(b)(West 2015).
27
procedural due process rights which were due. We sustain Issue Three as to the ultra vires
claims against Dr. Richard Lange and Dr. Pablo Moujan. We sustain Issue Four and conclude
that sovereign immunity is not waived by the UDJA allegation. We render judgment dismissing
the remaining claims for lack of subject matter jurisdiction.
December 14, 2016
ANN CRAWFORD McCLURE, Chief Justice
Before McClure, C.J., Rodriguez, and Hughes, JJ.
28