                                    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. at

86 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
