                                             OPINION
                                        No. 04-07-00858-CV

                                   William A. NEWMAN, Ph.D.,
                                            Appellant

                                                 v.

           Nereu F. KOCK, Jr., Jacky Yuk-Chow So, Dan R. Jones, and Ray M. Keck, III,
                                          Appellees

                     From the 341st Judicial District Court, Webb County, Texas
                               Trial Court No. 2006-CVQ-001982-D3
                         Honorable Elma T. Salinas Ender, Judge Presiding

Opinion by:       Rebecca Simmons, Justice

Sitting:          Alma L. López, Chief Justice
                  Phylis J. Speedlin, Justice
                  Rebecca Simmons, Justice

Delivered and Filed: August 6, 2008

AFFIRMED IN PART AND REVERSED AND REMANDED IN PART

           This appeal arises from a tenured professor’s loss of employment. Appellant William A.

Newman, a former professor at Texas A & M International University (“TAMIU”), raised

various claims against certain TAMIU officials, all revolving around whether he resigned or was

terminated. At the time final judgment was rendered, the remaining defendants were Nereu F.

Kock, Jr., Jacky Yuk-Chow So, Dan R. Jones, and Ray M. Keck, III (collectively “Appellees”).

We affirm in part and reverse in part the judgment of the trial court and remand this case to the

trial court for further proceedings.
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                                        BACKGROUND

        TAMIU hired Newman as a tenured professor of Management Information Systems in

2000. In July 2006, Newman asked TAMIU’s Human Resources department (“HR”) about the

procedure for retiring and filled out several forms relating to retirement. Newman claims he was

only making preliminary inquiries to gather information for planning purposes and that

completing these forms was part of the process of planning for future retirement. Newman

further asserts he was told by HR that, in order to retire, he needed to submit a letter of

resignation to his department chair or dean. It is undisputed that Newman never submitted such

a letter.

        Appellees claim that Newman informed Maritza Arriaga, TAMIU’s Associate Director of

HR, that Newman intended to leave his job shortly and not tell anyone, and that he had not

decided between two dates in August (August 10 and August 15, 2006). Arriaga contacted her

superior in HR, informing her about Newman’s plan to end his employment with TAMIU

without providing notice. That person, in turn, contacted Appellee So, the Dean of the College

of Business Administration. So conferred with Appellee Jones, provost of TAMIU, and they

agreed that Newman was resigning from TAMIU. On July 21, 2006, So sent a letter by e-mail

and by regular mail to Newman “accepting” Newman’s “resignation” effective August 15, 2006.

        Upon learning of the letter, Newman immediately contacted So by telephone to inform

So that he had not resigned. Additionally, on July 28, Newman sent an e-mail to So in which

Newman explained that he was only considering retirement and that he had yet to make a

decision. Appellee Keck, TAMIU President, sent Newman a letter on August 2, acknowledging

Newman’s July 28 e-mail and explaining TAMIU’s position that Newman had resigned.




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          On August 17, Newman sent a certified letter to Appellees Kock (the chairman of

Newman’s department at TAMIU), Kech and So, reiterating that he had not resigned and that he

planned to begin teaching classes on August 24 when the semester started. On August 24,

Newman met with Jones and So, who presented Newman a settlement agreement by which

Newman could teach one more semester before retiring in exchange for not suing TAMIU. After

consulting with his attorney, Newman rejected this offer. Newman also requested a hearing

before the Board of Regents. In response, Keck sent Newman a letter on September 7 informing

Newman that, because he had voluntarily resigned, his request for a hearing with the Board was

declined, as the Board does not review voluntary resignations. 1

          On December 1, Newman filed suit against Kock, So and Keck, asserting tort claims, a

claim for declaratory relief, and violations of his due process rights under federal law (including

42 U.S.C. § 1983) and his due course rights under state law. Newman initially included TAMIU

and the Chancellor of the A & M University System as defendants, but non-suited those

defendants in September 2007. 2

          Appellees filed a motion to dismiss the official capacity claims for lack of jurisdiction

based on sovereign immunity, a traditional motion for summary judgment on the individual

capacity claims based on qualified immunity and official immunity, and a no-evidence motion

for summary judgment on most of the individual capacity claims. After a hearing, the trial court

granted all of Appellees’ motions and entered orders dismissing all of Newman’s claims.

Newman appeals these orders.




1
  Although Newman’s letter requesting a hearing with the Board is not part of the record, it is clear from Keck’s
response letter that Newman requested such a hearing.
2
    Newman added Jones as a defendant in June 2007.


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       In the course of this appeal, Newman has voluntarily waived his claims for breach of

contract and interference with prospective contractual relations, leaving claims for declaratory

relief, tortious interference with contract, intentional infliction of emotional distress, and due

process/due course violations to be addressed in this appeal.

                              CLAIM FOR DECLARATORY RELIEF

       Newman asserts that the trial court erred in granting Appellees’ plea to the jurisdiction on

his claim for declaratory relief against Appellees in their “official capacity” only. He contends

that sovereign immunity is inapplicable because he is not seeking to impose monetary liability

against the government. See Tex. Educ. Agency v. Leeper, 893 S.W.2d 432, 446 (Tex. 1994)

(sovereign immunity waived for declaratory judgment claim seeking declaration that statute is

unconstitutional).

       A plaintiff who sues the State must establish the State's consent to suit. Tex. Dep’t of

Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999). Otherwise, sovereign immunity from suit

defeats a trial court’s subject-matter jurisdiction. Id. When sued in their official capacity,

governmental officials, like Appellees, are officers of the agency and, therefore, entitled to

sovereign immunity to the same extent the agency is. Tex. Natural Res. Conservation Comm’n

v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002). A trial court order granting a jurisdictional plea

based on sovereign immunity is reviewed de novo. Id.

       A plaintiff cannot circumvent sovereign immunity by characterizing his suit as a

declaratory judgment action for which immunity is waived when the plaintiff seeks relief for

which sovereign immunity has not been waived. Id. A declaratory judgment claim against state

officials that seeks to establish a contract’s validity, enforce performance under a contract, or




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impose contractual liabilities is a suit against the state for which immunity is not waived. Id. at

855.

        Through his claim against Appellees in their official capacity, Newman clearly seeks to

“establish his contract’s validity” and to “enforce performance under that contract.” Id. This is

precisely what the Texas Supreme Court’s IT-Davy opinion precludes. Id. The trial court,

therefore, properly granted Appellees’ plea to the jurisdiction as to Newman’s request for

declaratory relief.

                          TORTIOUS INTERFERENCE WITH CONTRACT

        The elements of a claim for tortious interference with a contract are: (1) the existence of

a contract subject to interference; (2) a willful and intentional act of interference; (3) proximate

cause; and (4) actual damages or loss incurred. Holloway v. Skinner, 898 S.W.2d 793, 795-96

(Tex. 1995). To establish a prima facie case when the defendant is both a corporate agent and

the third party who allegedly induced the corporation’s breach, the alleged act of interference

must be solely in the defendant’s personal interests, “so as to preserve the logically necessary

rule that a party cannot tortiously interfere with its own contract.” Id. at 796. A corporate

officer’s mixed motives, to benefit both himself and the corporation, are insufficient to establish

liability. ACS Investors, Inc. v. McLaughlin, 943 S.W.2d 426, 432 (Tex. 1997). Moreover, when

determining whether an agent acted against the corporation’s interests, the court must consider

the corporation’s evaluation of the agency’s actions. Morgan Stanley & Co. v. Tex. Oil Co., 958

S.W.2d 178, 181-82 (Tex. 1997). If a corporation does not complain about its agent’s actions,

the agent cannot be held to have acted contrary to the corporation’s interests. Powell Indus., Inc.

v. Allen, 985 S.W.2d 455, 457 (Tex. 1998).




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       Appellees filed a no-evidence summary judgment motion on Newman’s tortious

interference claim. In reviewing a “no-evidence” summary judgment, the court examines the

record in the light most favorable to the nonmovant. King Ranch, Inc. v. Chapman, 118 S.W.3d

742, 750 (Tex. 2003). The burden is on the nonmovant to present more than a scintilla of

probative evidence to raise a genuine issue of material fact on each of the challenged elements.

TEX. R. CIV. P. 166a(i). “Less than a scintilla of evidence exists when the evidence is ‘so weak

as to do no more than create a mere surmise or suspicion’ of a fact.” King Ranch, 118 S.W.3d at

751 (quoting Kindred v. Con/Chem., Inc., 650 S.W.2d 61, 63 (Tex. 1983)). More than a scintilla

of evidence exists if it would allow reasonable and fair-minded people to differ in their

conclusions. King Ranch, 118 S.W.3d at 751. A no-evidence summary judgment motion should

be denied if the nonmovant brings forth more than a scintilla of probative evidence to raise a

genuine issue of material fact. TEX. R. CIV. P. 166a(i).

       Appellees’ no-evidence motion for summary judgment asserted that there was no

evidence that any of them took actions that served personal interests to the detriment of

TAMIU’s, nor was there any evidence of any complaint by TAMIU of their actions in this

lawsuit. Newman’s response to the no-evidence motion for summary judgment generally avers

that Appellees’ acts were in bad faith, outside the scope of their authority, and amounted to

willful and intentional interference with his employment contract with TAMIU. However, there

is no evidence suggesting that Appellees would personally benefit from his absence, nor was

there any evidence that TAMIU complained or otherwise disapproved of Appellees’ actions.

Appellees were, therefore, entitled to summary judgment as to Newman’s tortious interference

with contract claim. See Dalrymple v. Univ. of Tex. Sys., 949 S.W.2d 395, 405 (Tex. App.—

Austin 1997) (affirming summary judgment on tortious interference claim by tenure-track



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professor where no evidence that administrators would personally benefit from his dismissal),

rev’d in part on other grounds sub. nom., 997 S.W.2d 212 (Tex. 1999); O’Bryant v. City of

Midland, 949 S.W.2d 406, 415 (Tex. App.—Austin 1997) (affirming summary judgment on

tortious interference claim by police officers against police chief and lieutenant where officers

presented no evidence that officials would benefit personally from their termination or that their

actions harmed city), aff’d in part and rev’d in part on other grounds, 18 S.W.3d 209 (Tex.

2000).

                      INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

         The elements of a claim for intentional infliction of emotional distress are: (1) the

defendant acted intentionally or recklessly; (2) the conduct was extreme and outrageous; (3) the

defendant’s actions caused the plaintiff emotional distress; and (4) the emotional distress was

severe. Brewerton v. Dalrymple, 997 S.W.2d 212, 215 (Tex. 1999). To satisfy the second

element, the conduct must be “so outrageous in character, and so extreme in degree, as to go

beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in

a civilized community.”     Twyman v. Twyman, 855 S.W.2d 619, 621 (Tex. 1993) (internal

quotation omitted). “It is for the court to determine, in the first instance, whether the defendant’s

conduct may reasonably be regarded as so extreme and outrageous as to permit recovery.”

Wornick Co. v. Casas, 856 S.W.2d 732, 734 (Tex. 1993) (internal quotation omitted).

         Intentional infliction claims do not extend to ordinary employment disputes.

Creditwatch, Inc. v. Jackson, 157 S.W.3d 814, 817 (Tex. 2005). The fact that an employee was

terminated, even if termination was wrongful, is not legally sufficient evidence that the

employer’s conduct was extreme and outrageous.            Sw. Bell Mobile Sys., Inc. v. Franco,




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971 S.W.2d 53, 54 (Tex. 1998). This is so whether the case involves private or public sector

employees. Dalrymple, 997 S.W.2d at 216.

       Appellees alleged in their no-evidence summary judgment motion that there is no

evidence of any extreme or outrageous conduct on their part. Newman’s response does not

identify any particular conduct that could be construed as “beyond all possible bounds of

decency.” Creditwatch, 157 S.W.3d at 817 (quoting Twyman, 855 S.W.2d at 621). The Texas

Supreme Court has established very stringent standards for what can constitute “outrageous and

extreme” behavior in an employment context such that it would support a claim for intentional

infliction of emotional distress.   There is no evidence that Appellees’ conduct, assuming

Newman’s account of the events is true, meets this stringent standard. Thus, the trial court

properly granted summary judgment on Newman’s intentional infliction claim.

                           DUE PROCESS AND DUE COURSE CLAIMS

       Newman argues that he may bring causes of action under 42 U.S.C. § 1983 and under the

state constitution to remedy the injuries done to him by Appellees’ denial of his due process and

due course rights. Castellano v. Fragozo, 352 F.3d 939, 956 (5th Cir. 2003) (due process); Univ.

of Tex. Med. Sch. v. Than, 901 S.W.2d 926, 929 (Tex. 1995) (due course). Newman asserts that,

as a tenured professor, he had a property interest in his continued employment and was,

therefore, entitled to due process before that interest could be taken from him. Newman argues

that Appellees denied him his due process rights by calling their termination of him a “voluntary

resignation,” thereby depriving him of his protected interest in his tenured position without

notice or a hearing.




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       In response to Newman’s due process and due course claims, Appellees asserted the

affirmative defenses of qualified immunity and official immunity and filed a traditional motion

for summary judgment claiming that they established these defenses as a matter of law.

A.     Applicable Law

       When a defendant moves for summary judgment based on an affirmative defense, like

qualified immunity or official immunity, the defendant must conclusively prove each element of

the defense, as a matter of law. City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex.

1994). We view the summary judgment proof in the light most favorable to the nonmovant, and

all doubts as to the existence of a genuine issue of material fact are resolved in the non-movant’s

favor. See Nixon v. Mr. Prop. Mgmt. Co., Inc., 690 S.W.2d 546, 548-49 (Tex. 1985).

       Qualified Immunity

       Qualified immunity is a defense to federal law claims that shields governmental officials

performing discretionary functions from liability as long as their actions could reasonably be

thought to have been consistent with the rights those actions are alleged to violate. Anderson v.

Creighton, 483 U.S. 635, 638 (1987). Whether an official may be held personally liable for

unlawful official action turns on the “objective legal reasonableness” of the action. Wilson v.

Layne, 526 U.S. 603, 614 (1999). Objective reasonableness is a matter of law for the courts to

decide. Williams v. Bramer, 180 F.3d 699, 703 (5th Cir. 1999). When an official pleads a

qualified immunity defense, the usual summary judgment burdens shift such that the plaintiff has

the burden to rebut the defense through evidence establishing that the official engaged in conduct

that violated clearly established law. Michalik v. Hermann, 422 F.3d 252, 262 (5th Cir. 2005).

A right is “clearly established” when its contours are “sufficiently clear that a reasonable official




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would understand that what he is doing violates that right.” Wooley v. City of Baton Rouge, 211

F.3d 913, 919 (5th Cir. 2000).

       Official immunity

       Official immunity is an affirmative defense that shields governmental employees from

personal liability. Telthorster v. Tennell, 92 S.W.3d 457, 460-61 (Tex. 2002). A governmental

employee is entitled to official immunity for (1) performance of discretionary duties (2) within

the scope of the employee’s authority (3) in good faith. Id. at 461. To obtain summary judgment

on the basis of official immunity, a governmental employee must conclusively establish each of

these elements. Id. To establish good faith, a state employee must show that a reasonable person

in the same position could have objectively believed that his conduct was lawful based on the

information available to him at the time. Ballantyne v. Champion Bldrs., Inc., 144 S.W.3d 417,

427-28 (Tex. 2004). The proof needed to demonstrate the “good faith” element of official

immunity is similar to that needed to establish the federal “objective reasonableness” standard.

Id. at 427 n.3; McCartney v. May, 50 S.W.3d 599, 613 (Tex. App.—Amarillo 1999, no pet.)

(“Qualified immunity against section 1983 claims requires proof of effectively the same

elements as official immunity under Texas law.”).

B.     Scope of Authority

       Newman asserts that Appellees did not act within the scope of their authority when they

“deemed” his resignation and denied him a hearing. He contends that, because the applicable

TAMIU regulations do not provide authority for administrators to “deem” a tenured professor’s

resignation, and those regulations further provide that only the Board of Regents can dismiss a

tenured professor, Appellees acted outside the scope of their authority.




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       Appellees conclusively established that the actions at issue in this lawsuit were within the

scope of their authority. Appellees were all charged with responsibilities regarding employment

and management decisions, including the appropriate actions to take when a tenured professor

resigns. The decision to “deem” Newman to have resigned and to persist in that position after

Newman clearly indicated he had not resigned may have been wrongful, an issue more fully

examined below. The fact that the actions may have been wrongful, however, does not, in itself,

take them outside the scope of Appellees’ authority. Medina County Comm’rs Court v. Integrity

Group, Inc., 944 S.W.2d 6, 9 (Tex. App.—San Antonio 1996, no writ) (“Government employees

that discharge the duties generally assigned them are acting within the scope of their authority

for purposes of immunity. . . . Even if a specific action is wrong or negligent, the employee still

acts within the scope of this authority.”); Tex. Dept. of Pub. Safety v. Tanner, 928 S.W.2d 731,

735 (Tex. App.—San Antonio 1996, no writ) (“Even if a specific action is wrong or negligent, an

officer acts within the scope of his authority when performing the general duties assigned.”).

C.     Objective Reasonableness/Good Faith

       Newman asserts that Appellees’ actions in “deeming” Newman to have resigned were

neither objectively reasonable nor in good faith and, therefore, the trial court erred in granting

summary judgment for Appellees on their defenses of qualified immunity and official immunity.

Appellees respond that their actions regarding Newman’s employment status, including

“deeming” his resignation and denying his request for a hearing, were objectively reasonable,

within the scope of their authority, and in good faith.

       1.      Right to Notice and a Hearing

       Newman asserts that Appellees deprived him of a property interest – his tenured position

– without first providing him notice and a hearing, violating his due course and due process



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rights. Because the Texas Supreme Court has stated that there is no “meaningful distinction”

between “due course of law” under the Texas Constitution and “due process” under the United

States Constitution, we look to case law addressing both types of claims in considering

Newman’s assertion. Than, 901 S.W.2d at 929; see also Govant v. Houston Cmty. Coll. Sys.,

72 S.W.3d 69, 75 (Tex. App.—Houston [14th Dist.] 2002, no pet.) (in case where college

instructor claimed due course rights in continued employment, affirming that “[d]ue course of

law . . . exists to prevent government from depriving persons of liberty and property without

notice and hearing”).

       Due process is implicated when the state or its agents deprive a person of a protected

liberty or property interest. Bd. of Regents v. Roth, 408 U.S. 564, 569 (1972). As a tenured

faculty member, Newman had a constitutionally protected interest in his employment. Perry v.

Sindermann, 408 U.S. 593, 599 (1972) (due process); McCartney v. May, 50 S.W.3d 599, 607

(Tex. App.—Amarillo 2001, no pet.) (due course); Owens v. Bd. of Regents, 953 F. Supp. 781,

786 (S.D. Tex. 1996). Due process in this context means the right to notice and, if the tenured

employee wants one, a hearing before termination. May, 50 S.W.3d at 607-08; Martine v. Bd. of

Regents, 578 S.W.2d 465, 470 (Tex. Civ. App.—Tyler 1979, no writ) (citing Roth and Perry for

the proposition that “a college teacher [with a protectable property interest in his employment]

[i]s entitled to the protection of procedural due process, including notice and a hearing on the

reasons for his nonretention . . . before he may be divested of that property right”).

       2.      Fact Issue – Resignation or Termination

       Newman’s constitutionally protected property interest in his tenured position entitled him

to notice and a hearing before he could be properly deprived of that property interest. May, 50

S.W.3d at 607-08. Accordingly, to be entitled to summary judgment on Newman’s due process



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and due course claims, Appellees had to conclusively establish that an objectively reasonable

official could have (1) “deemed” Newman to have retired, and (2) denied Newman’s request for

a hearing on his claim that he did not retire.

       Appellees argue that they acted in good faith because an objectively reasonable official

could have concluded that (1) Newman was not terminated, he retired, and (2) even if he did not

retire, he caused any loss of due process himself by expressly requesting a hearing with the

Board of Regents when no procedure exists in the TAMIU regulations for such a hearing. We

disagree.

       First, even assuming that an objectively reasonable official could have “deemed”

Newman’s retirement at the outset, the summary judgment evidence establishes that Appellees

persisted in maintaining that Newman had “retired” despite his prompt and unequivocal denial of

retirement. At a minimum, this raises a fact issue as to whether the “deemed” resignation was a

pre-text for wrongfully terminating him. See Telthorster, 92 S.W.3d at 465 (“[G]ood faith is not

a mechanical inquiry, but rather turns on the particular facts presented. When an [official]

exceeds the bounds of reasonableness, good faith cannot be shown, and the [official] will not

enjoy official immunity’s protection.”); Colbert v. Hollis, 102 S.W.3d 445, 449-50 (Tex. App.—

Dallas 2003, no pet.) (employee raised fact issue regarding supervisor’s good faith in terminating

her where she presented summary judgment evidence suggesting that employer fabricated a pre-

text to dismiss her).

       Second, the fact that Newman asked, well after his resignation had been “deemed,” for a

particular type of hearing to which he was not entitled is beside the point. See May, 50 S.W.3d

at 608 (holding that tenured professor’s failure to file grievance using school’s grievance

procedure did not preclude his due process claim; he asked for “a formal hearing” and “his



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failure to avail himself of the procedures provided” did not bar claim). Newman’s claim is that

he did not receive notice or an opportunity for a hearing before Appellees “deemed” his

resignation, which Newman asserts was actually a termination. See Martine, 578 S.W.2d at 467-

68.

       A fact issue exists as to whether Newman resigned or was terminated. In light of well-

established authority that a tenured professor must be given notice and an opportunity for a

hearing before termination, we cannot say that an objectively reasonable university official could

have terminated Newman’s employment without first providing him notice and a hearing. Roth,

408 U.S. at 569; May, 50 S.W.3d at 607-08. Accordingly, this case must be remanded for further

proceedings on Newman’s due course and due process claims.

                                          CONCLUSION

       The trial court properly dismissed Newman’s official capacity claims because the State

has not waived immunity from those claims. The trial court also properly granted summary

judgment on Newman’s tortious interference with contract and intentional infliction of emotional

distress claims because Newman failed to present any evidence to support critical elements of

those claims. We, therefore, affirm the judgment of the trial court as to these claims.

       The trial court erred, however, in granting summary judgment as to Newman’s due

process and due course claims. Fact issues exist as to whether Appellees acted in good faith in

“deeming” Newman’s resignation and denying his request for a hearing. Thus, we reverse the

judgment of the trial court as to Newman’s due process and due course claims and remand those

claims for further proceedings consistent with this opinion.



                                              Rebecca Simmons, Justice



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