                               NO. 07-11-00176-CV

                          IN THE COURT OF APPEALS

                    FOR THE SEVENTH DISTRICT OF TEXAS

                                  AT AMARILLO

                                    PANEL B

                                JANUARY 23, 2013


                        SYED AHMED, M.D., APPELLANT

                                        v.

             TEXAS TECH UNIVERSITY HEALTH SCIENCE CENTER
                    SCHOOL OF MEDICINE AT AMARILLO
                  AND DENNIS B. DOVE, M.D., APPELLEES


           FROM THE 99TH DISTRICT COURT OF LUBBOCK COUNTY;

          NO. 2010-553,448; HONORABLE WILLIAM C. SOWDER, JUDGE


Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.


                            MEMORANDUM OPINION

      Syed Ahmed, M.D., sued Texas Tech University Health Science Center School

of Medicine at Amarillo and Dennis B. Dove, M.D., for alleged wrongs arising from

Ahmed’s employment with Texas Tech.      The trial court sustained the plea to the

jurisdiction of Texas Tech and Dove and granted the motion of Texas Tech to dismiss
Dove under Civil Practice and Remedies Code § 101.106(e). 1 Ahmed now appeals.

For the reasons that follow, we will affirm.


                                        Background


       Ahmed’s pleading alleged the following facts. Ahmed was an assistant professor

of surgery at Texas Tech when his supervisor Dove and other school of medicine

administrators hired Dr. Rakhshanda Rahman, also a surgeon. To admit patients and

perform surgery, Rahman required privileges at two Amarillo hospitals, Northwest Texas

Hospital and Baptist Saint Anthony’s Hospital (BSA); Ahmed had for several years been

on staff of both hospitals. Ahmed believed Rahman did not possess all the surgical

credentials she claimed and believed her surgical training in Pakistan did not qualify her

for a “full license” to practice in Texas. Ahmed reported his concerns to Dove and the

credentialing committees at Northwest Texas and BSA.


       Ahmed’s pleading further alleged that BSA refused Rahman permission to

conduct surgery and see patients, but that based on the “heavy influence” of Texas

Tech, Rahman received privileges to perform breast surgery at Northwest Texas.


       Ahmed plead that Dove was “very upset” that Ahmed had reported his concerns

about Rahman, particularly to BSA. In January 2009, Dove gave Ahmed a negative

performance evaluation and began exerting pressure on him to resign, despite Ahmed’s

recent pay raise and bonus.




       1
           Tex. Civ. Prac. & Rem. Code Ann. § 101.106(e) (West 2011).

                                               2
         During March 2009, Ahmed filed an internal grievance against Dove. Thereafter,

Ahmed was removed from his teaching assignments in the school of medicine. Ahmed

made multiple appeals to the regional dean as well as to the dean of the medical school

but the school policy of non-retaliation was not implemented. He was excluded from

faculty activities and his application for evaluation went unattended.


         Ahmed ultimately resigned his position at Texas Tech and filed suit. There he

asserted claims Texas Tech violated the Texas Whistleblower Act, breached his

employment contract, violated provisions of the Texas Constitution, and committed

fraud, negligent misrepresentation and defamation. He additionally sought declaratory

relief. Ahmed also alleged Dove had defamed him. Texas Tech and Dove filed a plea

to the jurisdiction based on sovereign immunity and Texas Tech sought the dismissal of

Dove from the suit under Civil Practice and Remedies Code § 101.106(e). The trial

court granted the plea to the jurisdiction and the motion to dismiss, denying a motion by

Ahmed for continuance of the hearing and for discovery. This appeal followed.


                                         Analysis


Issues


         Through five issues Ahmed asserts the trial court erred by sustaining the plea to

the jurisdiction and dismissing his Whistleblower Act violation claim, his breach of

contract claim, and his due course of law claim under the Texas Constitution, granting

the motion to dismiss Dove, and denying his motion for continuance and discovery.




                                             3
Sovereign Immunity


      “Sovereign immunity and its counterpart, governmental immunity, exist to protect

the State and its political subdivisions from lawsuits and liability for money damages.”

Mission Consolidated Independent School District v. Garcia, 253 S.W.3d 653, 655 (Tex.

2008); Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371, 374 (Tex. 2006).

Sovereign and governmental immunities encompass two distinct principles, immunity

from suit and immunity from liability. Texas Dep’t of Parks & Wildlife v. Miranda, 133

S.W.3d 217, 224 (Tex. 2004); Channelview Indep. Sch. Dist. v. A.R.C.I., Ltd., 199

S.W.3d 556, 559 (Tex.App.--Houston [1st Dist.] 2006, no pet.). Immunity from liability is

an affirmative defense subject to waiver, but immunity from suit deprives a court of

subject-matter jurisdiction. Miranda, 133 S.W.3d at 224. Immunity from suit is thus

properly asserted in a plea to the jurisdiction. Reyes v. City of Laredo, 335 S.W.3d 605,

606 (Tex. 2010) (per curiam) (quoting Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636,

639 (Tex. 1999)).


      The burden is on the plaintiff to allege facts affirmatively establishing the trial

court’s jurisdiction. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446

(Tex. 1993). Whether a pleading alleges facts sufficient to demonstrate the trial court’s

subject matter jurisdiction is a question of law that is reviewed de novo. Miranda, 133

S.W.3d at 226. “When a plea to the jurisdiction challenges the pleadings, we determine

if the pleader has alleged facts that affirmatively demonstrate the court’s jurisdiction to

hear the cause.” Id. In reviewing the granting of a plea to the jurisdiction, we liberally

construe the pleadings in favor of the plaintiff and take the facts pled as true.

Westbrook v. Penley, 231 S.W.3d 389, 405 (Tex. 2007) (when plea to the jurisdiction

                                            4
challenges pleadings, and not existence of jurisdictional facts, court construes pleadings

in favor of pleader taking as true facts alleged to determine existence vel non of

jurisdiction (citing Miranda, 133 S.W.3d at 226)); see City of Elsa v. Gonzalez, 325

S.W.3d 622, 625 (Tex. 2010) (per curiam) (“When considering the pleadings, we

construe them liberally in favor of the plaintiffs, look to the pleader’s intent, and

determine if the pleader has alleged facts affirmatively demonstrating the court’s

jurisdiction”).


       Whistleblower Claim


       The Texas Whistleblower Act prohibits a governmental entity from terminating or

taking any adverse employment action against an employee who in good faith reports to

an appropriate law enforcement authority a violation of law by the entity or a public

employee. Montgomery County v. Park, 246 S.W.3d 610, 612 (Tex. 2007) (citing Tex.

Gov’t Code Ann. §§ 554.001-554.010). The act contains a provision waiving sovereign

immunity to the extent of liability for authorized relief. 2     Tex. Gov’t Code Ann. §

554.0035 (West 2012); State v. Lueck, 290 S.W.3d 876, 881-82 (Tex. 2009).                  To

demonstrate the trial court’s jurisdiction over an asserted Whistleblower Act claim, a

plaintiff must actually allege a violation of the act and not merely reference it. Lueck,

290 S.W.3d at 882 (“Mere reference to the . . . Act does not establish the state’s

consent to be sued and thus is not enough to confer jurisdiction on the trial court”)


       2
          See Tex. Gov’t Code Ann. § 554.0035 (West 2012) (“A public employee who
alleges a violation of this chapter may sue the employing state or local governmental
entity for the relief provided by this chapter. Sovereign immunity is waived and
abolished to the extent of liability for the relief allowed under this chapter for a violation
of this chapter”).

                                              5
(quoting Tex. Dep’t of Criminal Justice v. Miller, 51 S.W.3d 583, 587 (Tex. 2001)).

Thus, the elements of a Whistleblower Act claim “must be included within the pleadings

so that the court can determine whether they sufficiently allege a violation under the Act

and fall within” the waiver of immunity from suit provided by § 554.0035. Lueck, 290

S.W.3d at 884. For example, under Lueck, whether an employee made a “good faith

report of a violation of law to an appropriate law enforcement authority is a jurisdictional

question.” Tex. Dep’t of Health and Human Servs. v. Okoli, 295 S.W.3d 667, 668 (Tex.

2009).


         A plaintiff establishes a claim under the Whistleblower Act by showing: (1) he is a

public employee; (2) he acted in good faith in making a report; (3) the report involved a

violation of law by an agency or employee; (4) the report was made to an appropriate

law enforcement authority; and (5) he suffered retaliation as a result of making the

report. Tex. Gov’t Code Ann. § 554.002 (West 2012); Phelan v. Tex. Tech Univ., 07-07-

0171-CV, 2008 Tex. App. Lexis 500, at *8 (Tex.App.--Amarillo Jan. 23, 2008, pet.

denied) (mem. op.).


               Appropriate Law Enforcement Authority


         Under the Whistleblower Act, an appropriate law enforcement authority is an

entity that is “part of a state or local governmental entity or of the federal government

that the employee in good-faith believes is authorized to (1) regulate under or enforce

the law alleged to be violated in the report; or (2) investigate or prosecute a violation of

criminal law.”    Tex. Gov’t Code Ann. § 554.002(b) (West 2012); see Tex. Dep't of

Transp. v. Needham, 82 S.W.3d 314, 319 (Tex. 2002) (holding “general authority” to



                                              6
regulate, enforce, investigate, or prosecute is not enough). Under § 554.002(b) “good

faith” means the employee subjectively believed the governmental entity was authorized

to regulate under or enforce the law allegedly violated in the report or investigate or

prosecute a violation of the criminal law, and the employee’s belief was objectively

reasonable in light of the employee’s training and experience. Needham, 82 S.W.3d at

320-21.   In other words, the plaintiff must establish “he honestly believed he was

reporting the perceived violation to an authority within an entity which could regulate

under or enforce the law in issue or investigate or prosecute a criminal offense and,

moreover, that this belief was objectively reasonable.” Duvall v. Tex. Dep’t of Human

Servs., 82 S.W.3d 474, 478 (Tex.App.--Austin, 2002, no pet.).


      Ahmed’s pleadings asserted he reported violations of the law to his supervisor

Dove and to the credentialing committees of BSA and Northwest Texas. Texas Tech’s

plea to the jurisdiction contends Ahmed could not have had an objectively reasonable

belief that Dove or either credentialing committee was an appropriate law enforcement

authority under the act. We agree.


      As to the hospital credentialing committees, Texas Tech points out, and Ahmed

does not dispute, that both BSA and Northwest Texas hospitals are privately-owned

entities. Texas Tech contends it follows that the hospitals’ credentialing committees

cannot be “part of a state or local governmental entity or of the federal government,” as

required by the definition of appropriate law enforcement authority. Tex. Gov’t Code

Ann. § 554.002(b) (West 2012).       In response, Ahmed points to § 160.003 of the

occupations code, which requires physicians and medical peer review committees to

report “relevant information to the [Texas Medical Board] relating to the acts of a

                                           7
physician in this state if, in the opinion of the person or committee, the physician poses

a continuing threat to the public welfare through the practice of medicine.” Tex. Occ.

Code Ann. § 160.003(2)(a),(b) and § 151.002(1) (West 2012) (defining “board” as the

Texas Medical Board).        Ahmed contends that by virtue of the occupations code

requirements, the credentialing committees function “as an arm of the Texas Medical

Board.” We cannot agree. The reporting requirement set out in § 160.003 applies not

only to medical peer review committees and physicians licensed or lawfully practicing in

Texas but to other broad categories of medical practitioners, including physician

assistants licensed or lawfully practicing in our state, and medical students. If Ahmed’s

theory were correct, all those individuals would be considered “part of” the Texas

Medical Board for purposes of the authorized law enforcement authority definition.

Neither the plain language of the Whistleblower Act nor any other indicator of legislative

intent we have seen suggests to us the Legislature intended that individuals, or

committees, having merely a duty of reporting to a governmental entity are “part of” the

entity.


          The School of Medicine, unlike the hospital credentialing committees, is a state

governmental entity under the Whistleblower Act, 3 so it would be possible Ahmed’s

report to his supervisor Dove was a report to an appropriate law enforcement authority.

With regard to his report to Dove, Ahmed cites us to the Dallas Court of Appeals’

opinion in Univ. of Tex. Southwestern Med. Ctr. v. Gentilello, 317 S.W.3d 865

(Tex.App.--Dallas 2010, pet. granted), where the court concluded a fact issue existed as


          3
         See Tex. Gov’t Code Ann. § 554.001(5)(A) (West 2012) (defining state
governmental entity to include an institution of higher education as defined by section
61.003, Education Code).

                                              8
to whether a professor of medicine at the University of Texas Southwestern Medical

Center had a good faith belief his report to a superior of unsupervised patient treatment

by medical residents at Parkland Hospital was a report to a law enforcement agency.

Id. at 871. The professor alleged violations of Medicare and Medicaid statutes. The

court observed that the laws in question placed on the medical school responsibility for

their implementation at the hospital level. Id. at 870. And while the superior could not

write the rules or assess criminal punishment for a violation, he had the power and duty

of enforcement at the medical school. Id.


       Ahmed’s pleadings and briefing speak generally of his report of violations of the

“laws of Texas regarding the practice of medicine,” “Texas law regarding licensure

qualifications and permission of doctors to practice medicine,” and “credentialing laws

under the Texas Medical Board’s rules and laws.” We are not cited to authority like that

referred to in Gentilello, where, as noted, the Medicare and Medicaid statutes placed on

UT Southwestern the responsibility for their implementation at the hospital level.

Gentilello, 317 S.W.3d at 870. The occupation code provisions cited here place on

physicians like Dove only the obligation to report information to the Texas Medical

Board. 4   That reporting obligation is shared by broad categories of health care

practitioners. Tex. Occ. Code Ann. § 160.003(a) (West 2012).


       “[T]he Whistleblower Act’s limited definition of a law enforcement authority does

not include an entity whose power is not shown to extend beyond its ability to comply

with a law by acting or refusing to act or by preventing a violation of law by acting or

       4
        Those who make the required reports to the medical board also have protection
from retaliation. Tex. Occ. Code Ann. § 160.012 (West 2012) (prohibiting discipline or
discrimination against person reporting to board).

                                            9
refusing to act.   City of Elsa, 325 S.W.3d at 628.       Nor does it include an entity

possessing authority merely to take remedial action. See Duvall, 82 S.W.3d at 481-82

(drawing distinction between authority to regulate under or enforce the law and authority

to take remedial action).


       Nothing in the present matter indicates the existence of a legal relationship

empowering Dove to regulate, enforce, investigate, or prosecute a complaint for the

Texas Medical Board. Rather, under § 160.003, Ahmed made a report to an individual

and entities who, like him, were required to report information to the Texas Medical

Board. See Needam, 82 S.W.3d at 319, 320 (noting “the particular law the public

employee reported violated is critical to the determination” whether the one to whom

report is made is included within definition of appropriate law enforcement authority).


       Ahmed’s pleadings do not state facts demonstrating that at the time of the report

he possessed a good-faith, reasonable belief that by reporting to Dove and the

committees he was reporting to law enforcement authorities. See City of Elsa, 325

S.W.3d at 628 (citing Needham, 82 S.W.3d at 320-21 (holding that the Whistleblower

Act applies if the employee had a good-faith, reasonable belief that the report was made

to an appropriate law enforcement authority)). The good-faith analysis is not limited

simply to what Ahmed subjectively believed about the authority of Dove and the

credentialing committees to regulate, enforce, investigate, or prosecute.       Rather, it

includes an objective prong that considers whether a reasonably prudent person in the

same circumstances could have believed as Ahmed’s pleadings say he believed.

Leach v. Tex. Tech Univ., 335 S.W.3d 386, 397 (Tex.App.--Amarillo 2011, pet. denied).



                                            10
      Ahmed completed surgical training at Albert Einstein College of Medicine and

New York Medical College. He also holds a master of business administration degree

in healthcare from the University of Tennessee. He served as an assistant professor of

medicine for Texas Tech. He is a board-certified surgeon with “full and unrestricted

operating and admitting privileges” at BSA and Northwest Texas hospitals. The staff at

Northwest Texas nominated him as physician of the year in 2009. In short, Ahmed’s

pleadings do not show that a reasonable person invested with his training and

experience would have believed that reporting to his supervising physician that another

physician was misrepresenting her credentials and licensing status and practicing

outside her credentials was, for purposes of the Whistleblower Act, the equivalent of

reporting those violations of law to the Texas Medical Board. Ahmed has not plead he

reported the complained-of conduct involving Rahman to an appropriate law

enforcement authority as required by § 554.002. Tex. Gov’t Code Ann. § 554.002

(West 2012).


      Because Ahmed’s Whistleblower Act claim does not include an allegation he

made a report to an appropriate law enforcement authority, the trial court did not err by

finding no waiver of immunity and dismissing the claim.          Ahmed’s first issue is

overruled.


      Breach of Contract Claim


               Express Waiver


      The State waives immunity from liability on its contracts with a private party as if

it were a private party. Gen. Servs. Comm=n v. Little-Tex Insulation Co., 39 S.W.3d


                                           11
591, 594 (Tex. 2001). But waiver of immunity from suit for a claimed breach of contract

requires a clear and unambiguous expression by the Legislature. Travis County v.

Pelzel & Assocs., 77 S.W.3d 246, 248 (Tex. 2002); Tex. Gov’t Code Ann. § 311.034

(West Supp. 2012) (providing “a statute shall not be construed as a waiver of sovereign

immunity unless the waiver is effected by clear and unambiguous language”).


       Ahmed asserts Texas Tech expressly waived immunity from suit by policies

authorized as legislative acts.      His assertion is founded on Education Code §

109.001(c), which vests the governance of the Texas Tech University System in its

board of regents, and permits the board to delegate by rule a power or duty of the board

to an officer, employee or other agent. Tex. Educ. Code Ann. § 109.001(c) (West

2002). In Leach, we expressed our disagreement with a contention that by enacting

§ 109.991(c) the Legislature unambiguously permitted Texas Tech University to waive

its immunity. 335 S.W.3d at 394-95. That holding is dispositive of Ahmed’s contention

in this case.


       Even were we to find legislative authorization for a waiver of immunity from suit in

the education code provision Ahmed cites, we could not agree that the policies on which

he relies 5 have the effect of waiving immunity. See Univ. of Tex. at El Paso v. Herrera,

322 S.W.3d 192, 201 (Tex. 2010) (finding no waiver of immunity by state university

through its personnel handbook).

       5
          Ahmed cites a rule adopted by Texas Tech’s regents providing for the
establishment of grievance procedures for students, faculty and staff. He then points to
Texas Tech’s Health Sciences Centers’ operating policy and procedure, which includes
a faculty grievance procedure. Within that procedure is a provision stating, “Resignation
from or filing a legal suit against the institution before initiation of a grievance or during
the process shall preclude initiation of [sic] continuation of the grievance process.”

                                             12
       Ahmed next argues Texas Tech contracted away its immunity through language

in his employment contract. He refers to two contractual provisions: first, a clause

providing the contract is governed by the laws of the State of Texas and fixing venue of

any dispute in Lubbock County; and second, a paragraph entitled “waiver” providing,

“The failure of either party to enforce any provision of this Agreement . . . shall not be

construed as a waiver or limitation on that party’s right to subsequently enforce and

compel compliance with every provision of this Agreement.”           Without supporting

authority, Ahmed concludes this language constitutes “a clear and unambiguous waiver

of immunity.”


       This argument also has no merit.         It first assumes Texas Tech has been

empowered by the Legislature to waive its immunity. We have already concluded no

such authority exists. Moreover, the contractual language on which Ahmed relies is not

a clear and unambiguous waiver of immunity. See Texas Natural Res. Conservation

Comm=n v. IT-Davy, 74 S.W.3d 849, 851 (Tex. 2002) (finding no waiver of immunity

from language in contract’s remedies section stating claims or disputes would be

decided by arbitration or in court).


       Ahmed has not plead an effective express waiver by Texas Tech of its immunity

from suit on Ahmed’s employment contract.


                Equitable Waiver-by-Conduct


       Ahmed next asserts that Texas Tech waived immunity from suit by engaging in

inequitable conduct. For this assertion he relies on the decision in Texas Southern

University v. State Street Bank & Trust Co., 212 S.W.3d 893 (Tex.App.--Houston [1st

                                           13
Dist.] 2007, pet. denied), in which the court affirmed the trial court’s denial of a plea to

jurisdiction based on “extraordinary factual circumstances” set forth in the pleadings and

by the university’s conduct that “lured” a contractor into a contract. Id. at 900, 908. This

court also has stated its disagreement with the conclusion of the court in State Street

finding a potential waiver of immunity from suit through inequitable conduct. See Leach,

335 S.W.3d at 401.        Particularly in view of the rejection of a waiver-by-conduct

exception to the immunity of governmental entities from breach-of-contract suits in the

later case of Sharyland Water Supply Corp. v. City of Alton, 354 S.W.3d 407, 414 (Tex.

2011), we will not reconsider the issue here. 6


       Finding Ahmed has not plead a waiver of Texas Tech’s immunity from suit for his

breach-of-contract claim, we overrule Ahmed’s second issue.


       Declaration of Due Process Violation


       Ahmed’s third issue brings under analysis his request for declaratory relief under

the Uniform Declaratory Judgments Act (UDJA) 7 and the immunity from suit of Texas

Tech. Under this issue, Ahmed asserts the trial court erred in dismissing his request for

a declaration that Texas Tech “violated the due course of law clause of the Texas

Constitution when it retaliated against [Ahmed] and caused him to resign due to hostility

which constituted constructive termination and was wrongful.”         Ahmed explains the

viability of this request in light of an immunity claim. “Appellant does not seek any sort

       6
        See also City of Deer Park v. Ibarra, No. 01-10-0490-CV, 2011 Tex. App. Lexis
6899, at *18 (Tex.App.--Houston [1st Dist.] Aug. 25, 2011) (mem. op.) (explaining State
Street and distinguishing its facts from the case there at hand).
       7
           Tex. Civ. Prac. & Rem. Code Ann. §§ 37.001-.011 (West 2008).


                                            14
of contractual relief, such as contract damages, or specific performance under this

claim. Indeed, even if Appellant’s contract claims were not viable, he would still be

forced to seek a declaratory judgment to restore his reputation.”


       Nevertheless, Texas law provides “sovereign immunity bars UDJA actions

against the state and its political subdivisions absent a legislative waiver.” 8 Tex. Dep’t

of Transp. v. Sefzik, 355 S.W.3d 618, 620 (Tex. 2011) (per curiam); Tex. Parks &

Wildlife Dep’t v. Sawyer Trust, 354 S.W.3d 384, 388-89 (Tex. 2011) (citing State v. Lain,

162 Tex. 549, 349 S.W.2d 579, 582 (Tex. 1961) (holding absent State’s consent

sovereign immunity bars trespass to try title suit against State even if brought as action

for declaratory judgment under UDJA)). While the governmental entity is immune from

such suits absent consent, it is “[v]ery likely” the same claim could be brought against

the appropriate state official in his official capacity for nondiscretionary acts

unauthorized by law under the ultra vires exception to immunity. Sefzik, 355 S.W.3d at

621 (citing City of El Paso v. Heinrich, 284 S.W.3d 284, 372-73 (Tex. 2009)). “An ultra

vires suit is one to require a state official to comply with statutory or constitutional

provisions.” Tex. Lottery Comm’n v. First State Bank of DeQueen, 325 S.W.3d 628,

633 (Tex. 2010). Immunity does not bar an ultra vires claim for prospective injunctive

and declaratory relief against individual governmental officials acting in their official

capacities even if a declaration mandates payment of money, Heinrich, 284 S.W.3d at

372, although a governmental entity cloaked with sovereign immunity remains immune

from suit. Texas Dept. of Ins. v. Reconveyance Services, Inc., 306 S.W.3d 256, 258

       8
         The UDJA waives immunity when, for example, a party challenges the validity
of a statute. Sefzik, 355 S.W.3d at 622. This is because the UDJA expressly requires
joinder of the governmental entity. Id. at n.3 (citing Tex. Civ. Prac. & Rem. Code §
37.006(b)). Ahmed’s claim does not challenge the validity of a statute.

                                            15
(Tex. 2010). To come within the ultra vires exception to immunity, “a suit must not

complain of a government officer’s exercise of discretion, but rather must allege, and

ultimately prove, that the officer acted without legal authority or failed to perform a

purely ministerial act.” Heinrich, 284 S.W.3d at 372.


       Ahmed’s pleadings contain a paragraph referring to ultra vires acts. Although it

is not clear he asserts an ultra vires action seeking declaratory relief against an

individual or individuals in their official capacity, we will read his pleadings as asserting

such a claim.    We nonetheless conclude the trial court did not err by dismissing

Ahmed’s suit for a declaratory judgment. Ahmed’s suit complains that Dove reported an

unfavorable evaluation, opposed Ahmed’s appeal of the evaluation, cancelled his

teaching assignments, failed to include Ahmed in faculty retreats, meetings and dinners,

failed to timely perform evaluations and pressured Ahmed to resign his position. He

alleges that the actions against him taken by Dove and other School of Medicine

administrators were wrongful and damaging to him. But his suit does not allege the

school administrators were acting without legal authority when they took the actions, or

that they failed to perform a purely ministerial act. The “real substance”9 of Ahmed’s

claim for declaratory relief complains of Dove’s exercise of his discretion, not

“nondiscretionary acts unauthorized by law.” Sefzik, 355 S.W.3d at 621. He has not

plead a claim under the ultra vires exception to immunity.          Ahmed’s third issue is

overruled.




       9
         “The central test for determining jurisdiction is whether the ‘real substance’ of
the plaintiff’s claims falls within the scope of a waiver of immunity from suit.” Sawyer
Trust, 354 S.W.3d at 389 (citation omitted).

                                             16
Election of Remedies under Civil Practice & Remedies Code § 101.106(e)


         In his fourth issue, Ahmed contends the trial court erred by dismissing claims

against Dove under Civil Practice and Remedies Code § 101.106(e).


         The Texas Tort Claims Act provides in relevant part, “If a suit is filed under this

chapter against both a governmental unit and any of its employees, the employees shall

immediately be dismissed on the filing of a motion by the governmental unit.” Tex. Civ.

Prac. & Rem. Code Ann. § 101.106(e) (West 2011).


         Ahmed alleged Dove and Texas Tech defamed him by making “slanderous and

libelous statements against [him] causing his reputation and income potential

damages.” He further contended this conduct was intentional and “designed to injure

[his] reputation as a doctor, injure him in his occupation, and expose him to financial

harm.”


         The limited waiver of immunity of “this chapter,” the Tort Claims Act, does not

include a suit for defamation or intentional tortious conduct. But the scope of the act’s

waiver of immunity does not determine the applicability of § 101.106(e). “Because the

Tort Claims Act is the only, albeit limited, avenue for common-law recovery against the

government, all tort theories alleged against a governmental unit, whether it is sued

alone or together with its employees, are assumed to be ‘under [the Tort Claims Act]’ for

purposes of section 101.106.” Mission Consolidated, 253 S.W.3d at 659. On Texas

Tech’s filing of a motion to dismiss Dove, the trial court properly dismissed Ahmed’s tort

claims against him pursuant to § 101.106(e).




                                             17
        On appeal, Ahmed argues that he also alleged claims under the Texas

Constitution for taking his property without adequate compensation, article I, section

17, 10 and denial of due course of law, article I, section 19. 11 As to these theories, he

points to the holding of Mission Consolidated that claims against the government

brought pursuant to waivers of immunity apart from the Tort Claims Act are not “filed

under” the Tort Claims Act and are thus not subject to § 101.106(e). 253 S.W.3d at

659. Ahmed’s argument accurately characterizes the holding of Mission Consolidated

on that point, but we fail to see how the holding bears on the trial court’s dismissal,

pursuant to Texas Tech’s motion, of tort claims asserted against both Texas Tech and

its employee Dove. Ahmed’s fourth issue is overruled.


Motion for Continuance


        By his fifth issue, Ahmed asserts the trial court abused its discretion by denying

his motion for continuance and discovery. Ahmed filed suit on August 13, 2010. Texas

Tech and Dove answered on August 26. On the same date, Texas Tech and Dove filed

their pleas to the jurisdiction and Texas Tech its motion to dismiss the claims against

Dove.    These matters originally were scheduled for hearing on October 22, 2010.

Unaware of the scheduled hearing, on October 20, Ahmed served Texas Tech with

interrogatories, a request for production, and requests for disclosure. By agreement,



        10
          “No person’s property shall be taken, damaged or destroyed for or applied to
public use without adequate compensation being made, unless by the consent of such
person . . . .” Tex. Const. art. I, § 17(a).
        11
         “No citizen of this State shall be deprived of life, liberty, property, privileges or
immunities, or in any manner disfranchised, except by the due course of the law of the
land.” Tex. Const. art. I, § 19.

                                             18
the hearing was rescheduled for November 12, but Texas Tech and Dove verbally

refused to make discovery responses “unless so ordered by the Court.” 12


       Ahmed filed an unverified motion for continuance on October 28. In the motion

he argued his written discovery requests were served before he received notice of the

hearing and responses were not due until after the hearing date. And he “ha[d] been

advised” the court intended to quash a notice of Dove’s deposition.”13           Ahmed

requested thirty days to obtain responses to outstanding written discovery, and depose

Dove and an individual designated by Texas Tech. Ahmed argued the discovery was

required for his claims of retaliatory conduct and breach of contract.       “Otherwise,”

Ahmed continued, he lacked the “ability to present the necessary evidence . . . related

to the whistle-blower elements or Defendant’s conduct that waives immunity, such as

individuals’ communications, intentions, and knowledge related to the contract, its

termination, and their conduct.”


       The court signed an order November 3, 2010, setting a hearing on Ahmed’s

motion for continuance and the dilatory pleas of Texas Tech and Dove for December 3.

According to the order, which the attorneys for the parties signed as “agreed,” discovery

was stayed until the hearing date. An order signed November 15, also reciting an

agreed stay of discovery, continued the hearing until December 10. The trial court

implicitly overruled the requested continuance by signing its March 2011 order granting

the plea to the jurisdiction and motion to dismiss.


       12
            The record contains no motions or orders concerning discovery.
       13
          Apparently Ahmed served a notice of Dove’s deposition although it is not
included in the record.

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       We review the denial of a motion for continuance for a clear abuse of discretion.

Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 161 (Tex. 2004). A motion for

continuance shall not be granted except for sufficient cause supported by affidavit,

consent of the parties, or by operation of law. Tex. R. Civ. P. 251. We presume the trial

court did not abuse its discretion if a motion for continuance is not verified. See Villegas

v. Carter, 711 S.W.2d 624, 626 (Tex. 1986) (stating proposition and citing Garcia v.

Texas Employers’ Ins. Assn., 622 S.W.2d 626, 630 (Tex.App.--Amarillo 1981, writ ref’d

n.r.e)). When deciding whether a trial court abused its discretion by denying a motion

for continuance seeking additional time to conduct discovery the supreme court has

applied a nonexclusive list of factors including the length of time the case has been on

file, the materiality and purpose of the discovery sought, and whether the party seeking

the continuance has exercised due diligence in obtaining the requested discovery. Joe,

145 S.W.3d at 161 (summary judgment context).


       Even were we not confronted with the presumption that the trial court did not err,

we would conclude the court did not abuse its discretion in denying Ahmed’s motion for

continuance. Given the purposes for which Ahmed sought discovery, our conclusions

regarding the viability under the controlling law of his Whistleblower Act and breach of

contract claims, as discussed in our disposition of his appellate issues regarding those

claims, lead also to the conclusion the discovery Ahmed sought would not have raised a

fact issue postponing the dismissal of those claims.       See Joe, 145 S.W.3d at 162

(similar analysis); Zumwalt v. City of San Antonio, No. 03-11-00301-CV, 2012 Tex. App.

Lexis 4003, at *28-30 (Tex.App.--Austin May 12, 2012, no pet.) (mem. op.) (finding no

error by trial court in denying motion for continuance to conduct additional discovery


                                            20
when disposition of plea to the jurisdiction involved only question of law). No clear

abuse of discretion in denial of the continuance is shown.


Incurable by Amendment


       A plaintiff is generally entitled to a reasonable opportunity to amend his petition

Aunless the pleadings affirmatively negate the existence of jurisdiction.@ Tex. A&M

Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 839 (Tex. 2007). Ahmed supplemented his

petition twice after the defendants filed their pleas to the jurisdiction and motion to

dismiss. And Ahmed has requested an opportunity to further amend his petition if we

conclude it fails to allege sufficient jurisdictional facts.   But here, as in Koseoglu,

remanding the case for a chance to amend would serve no legitimate purpose. As we

have noted, the claims whose dismissal Ahmed challenges on appeal will not evade

immunity’s bar simply because more facts are alleged. See id., 233 S.W.3d at 840

(denying opportunity to amend breach of contract claim where alleging more facts

supporting waiver of immunity by conduct theory would add nothing).


                                       Conclusion


       Having overruled each of Ahmed’s issues on appeal and finding his pleading

incurable by amendment, we affirm the judgment of the trial court.



                                                 James T. Campbell
                                                     Justice




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