McCartney v. May, No. 07-00-0034-CV (Tex.App. Dist.

7 06/07/2001)

[1] IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF

TEXAS AT AMARILLO

[2] No. 07-00-0034-CV

[3] 2001.TX.0003501 <http://www.versuslaw.com>

[4] June 7, 2001

[5] DAVID L. MCCARTNEY, M.D., DARRYL M. WILLIAMS, M.D.,

AND DORMA KOHLER, APPELLANTS
v.
DONALD R. MAY, M.D., APPELLEE

[6] FROM THE 140TH DISTRICT COURT OF LUBBOCK COUNTY;

NO. 95-550,816; HONORABLE JIM B. DARNELL, JUDGE

[7] Before Boyd, C.J., Reavis, J., and Dickenson, Sj. *fn1

[8] The opinion of the court was delivered by: John T. Boyd Chief Justice

[9] Appellants David L. McCartney, M.D., Darryl Williams, M.D., and

Dorma Kohler bring this appeal from the denial of summary judgment
in a suit brought by appellee Donald R. May, M.D. This interlocutory
appeal presents questions as to sovereign immunity, official immunity,
and qualified immunity. For reasons we later recount, we affirm in part
and reverse and remand in part.

[10] This interlocutory appeal is authorized by Texas Civil Practice and

Remedies Code section 51.014(5) (Vernon Supp. 2001), which permits
such appeals from denial of a motion for summary judgment based
upon claims of immunity by an individual who is an officer or
employee of the state or a political subdivision of the state.
[11] BACKGROUND

[12] Dr. May was hired as a tenured professor and chairman of the
Department of Ophthalmology at the Texas Tech Health Sciences
Center in September 1989. He served in that position until April 7,
1994, when Darryl Williams, Dean of the medical school, removed May
as chair of the department and offered him a six-month position as
Associate Dean for Special Projects. Williams's letter stated the action
did not affect May's status as a tenured professor, but the new position
included no clinical responsibilities. Dr. McCartney was subsequently
selected to replace May as chair of the department.

[13] May filed suit on March 31, 1995, asserting claims for defamation, self-
defamation, intentional interference with contract, intentional
interference with prospective contractual relations, intentional infliction
of emotional distress, substantive due process violations under 42
U.S.C. § 1983, procedural due process violations under 42 U.S.C. §
1983, and due course of law violations under article 1, section 19 of the
Texas state constitution. The claims were asserted against Bernard T.
Mittemeyer, M.D., Donald Haragan, Ph.D., David McCartney, M.D.,
Darryl M. Williams, M.D., and Dorma Kohler.

[14] May included Dr. Mittemeyer, then Dean of the Texas Tech University
Health Sciences Center, as a party for the purpose of seeking injunctive
relief under 42 U.S.C. § 1983, the Due Process Clause of the fourteenth
amendment to the federal constitution and article 1, section 19 of the
Texas constitution. In his second amended original petition, May
substituted Dr. Joel Kupersmith as a party defendant in place of
Mittemeyer because he had succeeded Mittemeyer as Dean of the
Texas Tech University Health Sciences Center School of Medicine
(TTUHSC). In the same petition, May also substituted Dr. David R.
Smith for Dr. Donald Haragan because he had succeeded Dr. Haragan
as President of Texas Tech University and TTUHSC.

[15] After two attempts to remove the case to federal court, a defense
motion for summary judgment on which the trial court took no action,
and two prior motions for summary judgment, the defendants filed an
additional motion for summary judgment in September 1999. The
grounds asserted in this motion were that there was no evidence
 supporting May's claims and the claims were barred by the doctrines of
sovereign immunity, official immunity, and qualified immunity. The
trial court disposed of that motion by sustaining Drs. Smith and
Kupersmith's claims of sovereign immunity and dismissed them from
the case. It also granted summary judgment in favor of the remaining
defendants McCartney, Williams and Kohler, on May's claim for
intentional interference with contract, denied the motion as to his
remaining claims against appellants in their individual and official
capacities for defamation, self-defamation, and intentional interference
with prospective contractual relations. It also expressly overruled
appellants' assertion of affirmative defenses to May's claims under 42
U.S.C. § 1983. Unaddressed in the court's order were May's claims for
intentional infliction of emotional distress and violation of due course
of law. Denial of summary judgment on those claims is implicit in the
court's order. Hence, this appeal by appellants as the remaining
defendants.

[16] In mounting their challenges, appellants present four issues for our
determination. They are: 1) whether May's tort claims against them in
their official capacities should be dismissed because they are entitled to
sovereign immunity; 2) whether May's intentional tort claims against
appellants in their individual capacities should be dismissed because
May did not overcome their entitlement to official immunity; 3)
whether May's due process claims under 42 U.S.C. § 1983 for monetary
damages against appellants in their official capacities should be
dismissed because they are entitled to sovereign immunity; and 4)
whether May's due process claims under 42 U.S.C. § 1983 against
appellants in their individual capacities should be dismissed because
May did not overcome their entitlement to qualified immunity.

[17] DISCUSSION

[18] Initially, May contends that we lack jurisdiction over this appeal. He
argues that the issues asserted in appellants' third motion for summary
judgment were considered and rejected by the trial court on January 20,
1998. Because they did not take a timely appeal from that denial, he
posits that this appeal is untimely and we have no jurisdiction to
consider it. In advancing that argument, May places primary reliance
upon the court's decision in Cameron County v. Carrillo, 7 S.W.3d 706,
708-09 (Tex.App.--Corpus Christi 1999, no pet.). However, Texas Rule
of Civil Procedure 166a does not limit the number of times a motion
for summary judgment may be filed. Tex. R. Civ. P. 166a. The general
 rule is that denial of a summary judgment is interlocutory and is in no
way final. De Los Santos v. S.W. Texas Methodist. Hosp., 802 S.W.2d
749 (Tex.App.--San Antonio 1990, no pet.), overruled on other grounds,
Lewis v. Blake, 876 S.W.2d 314 (Tex. 1994). Because that is the case,
a motion for summary judgment may be reurged in the district court
after its denial. Villages of Greenbriar v. Torres, 874 S.W.2d 259, 262
(Tex.App.--Houston [1st Dist.] 1994, pet. denied). The portion of the
Carrillo opinion on which May apparently relies is that in which the
court refers to a "renewed" motion for summary judgment as a
successive motion for new trial and not a motion for rehearing "because
it contains different grounds for summary judgment than did the earlier
motion." Carrillo, 7 S.W.3d at 709. If there be an implication in that
comment that a summary judgment motion may not be reurged in
district court, we would disagree. Because of its interlocutory nature, a
trial court continues to have the right to reconsider an earlier
disposition. The mere fact that the statute does permit the appeal of a
summary judgment motion such as the one before us, does not mean
that the absence of an appeal from an earlier motion deprives the later
ruling of its interlocutory nature or of the right to appeal a later ruling.

[19] It is well established that a defendant moving for summary judgment on

an affirmative defense must conclusively establish all elements of that
defense. A matter is conclusively established if ordinary minds could
not differ as to the conclusion to be drawn from the evidence. City of
Palestine v. Ramirez, 925 S.W.2d 250, 253 (Tex.App.--Tyler 1996, no
pet.) (citing Triton Oil & Gas Corp. v. Marine Contractors & Supply,
Inc., 644 S.W.2d 443, 446 (Tex. 1982)). It follows, then, that a
summary judgment is not proper if the evidence upon which the party
propounding the affirmative defense depends is in dispute. In
determining whether there is a disputed material fact issue precluding
summary judgment, evidence favorable to the non-movant must be
taken as true, every reasonable inference must be indulged in favor of
the non- movant, and any doubts resolved in his favor. Nixon v. Mr.
Property Management Co., 690 S.W.2d 546, 549 (Tex. 1985).

[20] Appellants' suggested issues raise questions as to both sovereign and

official immunity. Although both are types of governmental immunity,
sovereign immunity and official immunity are two distinct doctrines
aimed at serving different policies. Sovereign immunity, unless waived,
protects the State of Texas, its agencies and its officials from lawsuits
for damages, absent legislative consent to sue the state. Federal Sign v.
Texas Southern University, 951 S.W.2d 401, 405 (Tex. 1997). On the
other hand, official immunity is an affirmative defense that protects
 government employees from tort liability (1) for the performance of
discretionary duties (2) within the scope of the employees' authority (3)
provided the employees act in good faith. City of Lancaster v.
Chambers, 883 S.W.2d 650, 653 (Tex. 1994).

[21] Drawing on the standard applied to qualified immunity in 42 U.S.C. §

1983 suits, our supreme court has defined good faith as a test of
objective legal reasonableness, without regard to whether the
government official involved acted with subjective good faith.
Chambers, 883 S.W.2d at 656. "[W]e look to whether a reasonable
official could have believed his or her conduct to be lawful in light of
clearly established law and the information possessed by the official at
the time the conduct occurred." Id. Thus, qualified immunity protects
"all but the plainly incompetent or those who knowingly violate the
law." Id. To controvert a defendant's summary judgment proof on good
faith, the plaintiff must show that "no reasonable person in the
defendant's position could have thought the facts were such that they
justified defendant's acts." Id. at 657.

[22] Appellants' first issue assigns error to the trial court's failure to grant
summary judgment for them in their official capacities under the
doctrine of sovereign immunity. In Vincent v. West Texas State
University, 895 S.W.2d 469 (Tex.App.--Amarillo 1995, no writ), we
discussed the application of sovereign immunity to a suit against a state
university employee in their official capacity. We held such a claim is,
in effect, a claim against the state and implicates sovereign immunity.
Id. at 472. To enjoy the benefits of the doctrine, the defendant must
affirmatively plead it. Davis v. City of San Antonio, 752 S.W.2d 518
(Tex. 1988). When properly raised, sovereign immunity deprives the
court of jurisdiction unless the plaintiff establishes a waiver by the
state. Vincent, 895 S.W.2d at 472.

[23] Because sovereign immunity belongs to the state and the protection it
affords state employees is limited to their official capacities, we must
consider whether the employees may assert that defense directly. This
question only arises where, as here, the plaintiff sues the employees in
their official capacities but does not name an agency of the state as a
defendant directly. There is a split of authority on this question.

[24] In Smith v. Davis, 999 S.W.2d 409 (Tex.App.--Dallas 1999, no pet.),

the Dallas Court of Appeals considered the issue and found an
 employee could not assert sovereign immunity when the employer was
not a named party. Id. at 416. This is so, it reasoned, because "the
immunity protects only the sovereign, only the sovereign is entitled to
claim the defense or, possibly, decide to waive it by not affirmatively
pleading it." Id. at 416. The Dallas court also suggested that a ruling on
sovereign immunity in the absence of the government entity would be
an impermissible advisory opinion. Id. at 417. The court recognized
opinions from two other courts of appeals which permitted officials to
assert sovereign immunity when their employers were not parties to the
suit. Those cases, Liberty Mut. Ins. Co. v. Sharp, 874 S.W.2d 736, 738
(Tex.App.--Austin 1994, writ denied), and Gonzalez v. Avalos, 866
S.W.2d 346, 352 (Tex.App.--El Paso 1993, writ dism'd w.o.j.), did not
discuss the significance of the absence of the defendants' employers as
named parties.

[25] We do not agree with the holding in Davis. Because a claim against a
state employee in their official capacity is, in effect, a claim against the
state, Liberty Mutual, 874 S.W.2d at 738, to that extent the state is a
party. See, e.g., Hafter v. Melo, 502 U.S. 21, 25, 112 S.Ct. 358, 116
L.Ed.2d 301 (1991) (in such a case the governmental entity is the real
party in interest). Indeed, subject to certain exceptions, the state is
obligated to defend the employee and to indemnify them for claims
based on conduct in their official capacity. Tex. Civ. Prac. & Rem.
Code Ann. §§ 104.001-.009 (Vernon 1997 & Supp. 2001). Whether the
state is named as a party does not affect the role of its employees in
their official capacity and should not affect their ability to rely on the
immunity afforded to them in that capacity.

[26] Appellants' answer to May's third amended petition specifically asserted

sovereign immunity as an affirmative defense to the claims against
them in their official capacities. The defense was also asserted in
appellants' motion for summary judgment. May's response to the third
motion for summary judgment was extensive, consisting of 140 pages
of text. However, it did not address May's assertion of sovereign
immunity. We find no basis for a waiver of sovereign immunity as to
appellants in their official capacities. Therefore, they were entitled to
summary judgment to that extent and we sustain their first issue.

[27] Appellants' second issue assigns error to the trial court's failure to grant
summary judgment in their individual capacities on the basis of official
immunity. As noted above, to establish their right to summary
judgment on official immunity, appellants had the burden of
 conclusively proving each element of that defense, specifically that they
1) were performing discretionary duties, 2) within the scope of the
employee's authority, 3) acting in good faith. University of Houston v.
Clark, 22 S.W.3d 915, 918 (Tex. 2000). We consider whether each
appellant met this burden.

[28] Darryl Williams

[29] Appellants' argument begins with the proposition that "May's claims
against Williams centers [sic] around his decision to remove May as
chair of the department and reassign him to the position of Associate
Dean without clinical responsibilities." They reason he is entitled to
official immunity because, as dean of the medical school, the
reassignment of a department chair is within his discretionary duties
and evidence of the faculty's lack of support for May establishes
Williams's good faith. In support of the second element, Williams relies
on the Professional Staff Bylaws of the school of medicine which
provide, "[a] chairperson may be removed by action of the Dean on
behalf of the governing body," and an affidavit from Maximilian Buja,
Dean of the University of Texas Health Science Center at Houston, that
it is "standard practice" that department chairs serve at the will of the
dean.

[30] We agree that May's claims center around his removal as chair of the
department of ophthalmology. However, a reading of May's petition
and response to the motion for summary judgment reveal several
specific acts and omissions form the basis of his claims. May claims the
reassignment and the effective suspension of his clinical privileges and
status as a faculty member were each done without affording him
procedural due process.

[31] Williams's summary judgment evidence that the reassignment of a

department chair is a discretionary act is uncontroverted. While May
represents it was his "understanding" that a department chair could only
be removed by the board of regents, the Professional Staff Bylaws,
however, conclusively established the acts were within the scope of
Williams's duties. The remaining issue is whether Williams
conclusively established that he was acting in good faith.

[32] With regard to the removal of May as department chair without notice
 or a hearing, Williams relies on the Professional Staff Bylaws and an
affidavit of Dr. Buja, who testified that department chairs may be
removed without "cause, prior notice or a hearing." The question before
us is whether May was entitled to due process before he could be
removed as chair of the department. This is a question of law on which
Dr. Buja's opinion has no bearing. Under the fourteenth amendment to
the federal constitution, due process is implicated when the state or its
agents deprive a person of a protected liberty or property interest.
Board of Regents v. Roth, 408 U.S. 564, 569, 92 S.Ct. 2701, 33
L.Ed.2d 548 (1972). To have a protectable property interest in public
employment, a person must have more than a unilateral expectation, he
must have a claim of entitlement. Roth, 408 U.S. at 576. A claim of
entitlement exists when the employee can only be dismissed for cause.
Kruger v. Cressy, No. 99-1857 (1st Cir. Jan 4, 2000) (unpublished
memo opinion at 201 F.3d 427).

[33] The Professional Staff Bylaws of the medical school impose no

limitation on the dean's power to remove a department chair and May
presented no contract or other evidence limiting Williams's power to
remove the chair of a department. The facts of this case are strikingly
similar to those presented in Kruger. Kruger also involved the removal
of a department chair at a state university. Id. Finding no substantive
limitation on the dean's power to remove a department chair, the court
held there was no property interest which implicated the protections of
the fourteenth amendment. Id. Consequently, the denial of notice and a
hearing did not violate an established constitutional right. Without a
property interest in his chairmanship, May cannot establish his
substantive due process claim. Williams's summary judgment evidence
establishes his entitlement to official immunity for claims based on his
removal of May as chair of the department of ophthalmology and the
denial of summary judgment to that extent was error.

[34] We next consider Williams's actions as they related to May's status as a

faculty member and his clinical privileges. Because May's status as a
member of the faculty was protected by tenure, he had a protectable
property interest in that position. Available authority supports the
proposition that clinical privileges are also a protectable property
interest. See, e.g., Woodbury v. McKinnion, 447 F.2d 839 842 (5th Cir.
1971); Greenwood v. Office of Mental Health, 163 F.3d 119 (2d Cir.
1998). Here, the Professional Staff Bylaws specifically provided for the
right to a hearing on actions adversely affecting his clinical privileges.
[35] Relying on correspondence and their own affidavits, appellants' position
is based on the premise that May's reassignment had no effect on his
status as a member of the faculty or on his clinical privileges. May
responded with his affidavit that in August 1993, at the beginning of his
leave of absence, he was instructed not to contact anyone in the
department. In his deposition testimony, Williams admitted telling May
"he should not return to the department" or speak to the faculty or staff
about his status, but denied an outright prohibition.

[36] The true nature and effect of Williams's admonition to May is a

question of fact. Consequently, because we are reviewing a motion for
summary judgment, we must take evidence favorable to May, as the
non- movant, as true and resolve every reasonable doubt in his favor.
Nixon, 690 S.W.2d at 548. We must therefore review May's claims
concerning his faculty status and clinical privileges on the basis that he
was precluded from interacting with department faculty or staff.

[37] Appellants assert that, while May's tenure entitled him to continued
employment, it did not entitle him to a particular salary or duties, so
any change in those aspects of his employment did not deprive him of a
protected property right or implicate due process. They also argue that
May's due process claims are precluded by his failure to file a
grievance using the school's grievance process.

[38] The record shows May did seek a hearing withing the school's
procedures. In his March 30 letter to Williams, May requested a return
"to full-time work as Professor and Chairman of the Department of
Ophthalmology" and, contingent on denial of that request, May sought
"a formal hearing be convened as soon as possible to review all charges
which have been brought against me," and further requested a review
"[i]f any question of my medical competence has been brought forth."
Williams's April 7, 1994 response removed May as chair of the
department, promised to "honor your request for a thorough
investigation of [your clinical abilities.]" When this review did not
occur, acting through his attorney, May again requested a clinical
review in September 1994. The response from the school's attorney was
to grant his request, however, the review still did not take place until
after May filed suit several months later. No hearing was held on his
removal as department chair or exclusion from the department.
Appellants have failed to show May's due process claims are precluded
by his failure to avail himself of the procedures provided.
[39] With regard to his faculty status, appellants rely on Board of Regents
Policy 06.04 entitled, "Establishing Rank and Awarding Tenure."
Appellants' motion for summary judgment included two pages from
that eight-page document. *fn2 The included portion relevant here
provided:

[40] (B) Tenured Appointment. A tenured appointment assures the right of

the faculty member to a continuing academic position of employment.
The tenured faculty member is subject to possible adjustments
regarding salary, administrative position and employment duties.

[41] (D) Academic Appointment. . . . Although tenure does not apply to

administrative positions, faculty members holding administrative
positions may be tenured in their respective academic units.

[42] May does not contest the applicability of these provisions to his rights
arising from his status as a tenured member of the faculty. Although
not cited by appellants, several cases hold that, absent a contractual
provision limiting the employer, an instructor has no property right in a
particular teaching assignment, or in teaching classes at all. Wagner v.
Texas A & M University, 939 F.Supp. 1297 (S.D. Tex. 1996), citing
Dooley v. Fort Worth I.S.D., 686 F. Supp. 1194, 1199 (N.D. Tex.
1987), aff'd, 866 F.2d 1418 (5th Cir.), cert. denied, 490 U.S. 1107, 109
S.Ct. 3158, 104 L.Ed. 2d 1021 (1989). See also Davis v. Mann, 882
F.2d 967 (5th Cir. 1989); Kelleher v. Flawn, 761 F.2d 1079, 1086 (5th
Cir. 1985) (change in duties which prevented professor from teaching
specific classes was not a constructive discharge).

[43] May's response to the summary judgment motion did not contain any
evidence that the reduction in his salary and change in duties were so
significant as to exceed the "adjustments" permitted by the Board of
Regents Policy. Consequently, the summary judgment evidence
establishes he was not deprived of a property interest as a tenured
faculty member by changes in his salary and exclusion from the
department of ophthalmology.

[44] With regard to the effective suspension of May's clinical privileges,

appellants' sole remaining argument is that "May can point to no
conduct by Williams that deprived him of . . . the right to practice
medicine at the facilities at which he maintained staff privileges." This
 argument ignores May's affidavit that Williams instructed him not to
speak to the faculty or staff of the department of ophthalmology and the
summary judgment standards which require us to take that evidence as
true. It requires no leap of logic to conclude that if May was prohibited
from speaking with the faculty or staff of the department, he could not
exercise his clinical privileges there. Because appellants' argument is
premised on the idea that he was not deprived of that right, they present
no evidence in support of Williams's good faith and have failed to
establish his entitlement to official immunity.

[45] As to the claims asserted against Williams, the trial court should have
granted summary judgment in his individual capacity for claims arising
from May's removal as chair and any effect on May's status as a
tenured faculty member. Denial of immunity for claims arising from
interference with clinical privileges was proper.

[46] David McCartney

[47] The remaining claims against McCartney in his individual capacity

were defamation, self-defamation, interference with prospective
contractual relations, intentional infliction of emotional distress and
denial of due process. The conduct on which these claims are based are
statements attributed to McCartney impugning May's medical skills,
administrative ability as department chair, mental stability, and honesty.

[48] Because appellants' appeal is only from the denial of their immunity
claim, we do not consider whether self-defamation is a recognized
cause of action in Texas and express no opinion on that issue. See Lyle
v. Waddle, 144 Tex. 90, 188 S.W.2d 770, 772 (1945), and Doe v.
SmithKline Beecham Corp., 855 S.W.2d 248, 259 (Tex.App.--Austin
1993) (recognizing conflict of authorities), modified by SmithKline
Beecham Corp. v. Doe, 903 S.W.2d 347 (Tex. 1995).

[49] Challenging May's claims for defamation, self-defamation, interference

with prospective contractual relations, and intentional infliction of
emotional distress, appellants' motion sought to establish McCartney's
immunity by showing any statements he made were made in the course
of performing discretionary duties, within the scope of his authority,
and in good faith. The only element now in dispute is whether
appellants established that McCartney was acting in good faith.
[50] Again, the test for good faith is whether under the same or similar
circumstances, a reasonable government employee could have believed
that his actions were lawful based upon the information he possessed at
the time of his conduct. Chambers, 883 S.W.2d at 656. May contends
appellants bore a burden to establish the legitimacy of the concerns
expressed in McCartney's statements. He presents no authority stating
the test of good faith in that way. However, we believe appellants'
evidence does establish that a reasonable person in McCartney's
position could have believed the statements were lawful.

[51] The first group of statements concern May's ability to be an effective

administrator of the department. These statements were primarily based
on the faculty's loss of confidence in May. When Williams spoke to
other faculty members, he found support for these statements. The fact
that May continued to receive favorable reviews from his superiors
does not alter the truth of the statements concerning the faculty's view
of May.

[52] The second set of statements concern May's clinical abilities. There is
nothing in the record to show any specific statement on this issue from
McCartney. In his own deposition, May only testified that he recalled
"statements" about his clinical ability in a faculty meeting. He
acknowledged that there may have been a malpractice suit pending at
the time, stating: "It was touched upon that somehow this lawsuit may
indicate that my clinical skills were not good." Even if this statement is
attributed to McCartney, a reasonable person with knowledge of a
malpractice claim could have believed a statement of the type alleged
by May was lawful.

[53] May next complains of statements McCartney assertedly made about

his mental stability. In his brief, May alleges these statements were that
the terminal illness of May's mother had taken a "heavy toll" on him,
that he was "distraught," "imbalanced," and "self-destructive." As
support for these allegations, May cites the deposition testimony of
Williams and handwritten meeting notes of McCartney. The statements
that his mother's illness had taken a "heavy toll" on May and that he
was "distraught" over that circumstance are reflected in the record.
However, there is nothing to show these statements were defamatory or
so extreme and outrageous as to evidence an intent to inflict emotional
distress. Other witnesses expressed their belief that anyone would suffer
 from stress in a similar situation. Similarly, the record reflects
McCartney had a discussion with Mittemeyer concerning the stress
May was under due to his mother's illness and suggesting some leave
time would be helpful. There is nothing to show a reasonable person
would think this statement was unlawful.

[54] With regard to the statements that he was imbalanced or self-

destructive, May appears to rely on McCartney's handwritten meeting
notes. May cites to several pages of these notes rather than specific
passages. The copies which appear in the record are, for the most part,
illegible and we have failed to find the statements alleged. Moreover,
there is nothing to show these notes were published to any third party
as required for a defamation claim. Hill v. Herald-Post Pub. Co., Inc.,
877 S.W.2d 774, 778 (Tex.App.--El Paso 1994), reversed in part on
other grounds, Herald-Post Pub. Co., Inc. v. Hill, 891 S.W.2d 638 (Tex.
1995). May has failed to show that a reasonable person in McCartney's
position could not believe he was acting lawfully in making any
personal notations he chose. See Chambers, 883 S.W.2d at 657.

[55] The final statement forming the basis for May's claims was that during
a meeting McCartney expressed the opinion that one or more bills from
May to Medicare amounted to fraud. The bills were prepared with
May's name, although the patients were seen by another doctor. At the
same meeting, May responded by explaining the bills were
automatically generated and had not yet been reviewed by him or
submitted for payment.

[56] It is apparent that submitting inaccurate bills to Medicare would be

harmful to the school and that it was in the interest of members of the
administration to prevent events of that type from happening. May's
agreement that the bills were in error shows that McCartney had a basis
for the statement attributed to him. The statement May attributed to
McCartney did not contain an allegation that May intended to submit
fraudulent bills or had done so on other occasions. A reasonable person
in McCartney's position could believe that he was entitled, even
obligated, to express concerns he had with regard to bills sent to the
Medicare program.

[57] As to each of the statements alleged by May, the summary judgment

record satisfies the good faith element set out in Chambers.
Consequently, appellants have established McCartney's entitlement to
 the defense of official immunity on each claim based on those
statements.

[58] Dorma Kohler

[59] Dorma Kohler was the administrator of the Department of

Ophthalmology at the Health Sciences Center. Her responsibilities
included financial management of the department. May's claims against
Kohler arose from two statements he attributes to her. The first is that
during a department meeting, Kohler stated the department had a
projected deficit of $250,000. May does not allege that Kohler blamed
the projected deficit on his leadership of the department. May's only
evidence that this statement was false is his equivocal deposition
testimony that he recalled the department was profitable for each of the
years he was chairman. He has presented no exhibits or other evidence
that Kohler could not have believed the statement concerning the
department's projected financial condition was true at the time she made
it, as stated in her affidavit.

[60] The second statement forming the basis for May's claims against Kohler
is that she told members of the faculty and staff that secretaries were
spending an inordinate amount of time doing personal work for May.
*fn3 The record shows one conversation where May's secretary,
Andrea Adkins, discussed with Kohler the amount of personal work she
was doing for May. Kohler asked Adkins to provide her with copies of
documents she prepared for May. The record does not reflect what, if
anything, was done with these documents. As the administrator of the
department, it was one of Kohler's duties to keep the department
running efficiently. Determining how much employee time was spent
on non-department work was related to the department's efficiency.

[61] The summary judgment record shows that a reasonable person in

Kohler's position could believe they were acting properly in making
each of the statements on which May's claims against Kohler are based.
Therefore, she has established that those acts were in good faith under
Chambers, entitling her to official immunity. Because the statements
are the only conduct specifically alleged in May's petition as support for
the causes of action asserted against Kohler, her immunity applies to
each of those claims.
[62] Appellants' third issue challenges the denial of their defense of
sovereign immunity on May's claims under Title 42, Section 1983 of
the United States Code (section 1983 claims), to the extent those claims
are asserted against them in their official capacities. Appellants cite
Quern v. Jordan, 440 U.S. 332, 341, 99 S.Ct. 1139, 59 L.Ed.2d 358
(1979), for the proposition that section 1983 does not abrogate a state's
sovereign immunity. Because a suit against them in their official
capacities is in effect a suit against the sovereign, they have immunity
in that capacity unless waiver is established. Vincent, supra.

[63] Appellants then cite Turner v. Texas Dept. of Mental Health and
Mental Retardation, 920 S.W.2d 415, 418 (Tex.App.--Austin 1996, writ
denied), as support for their contention that "a § 1983 cause of action
cannot be maintained against state agencies or officials in state court."
Turner does not support that proposition. The Turner court actually
wrote that the plaintiff could not maintain his section 1983 action in
state court "because neither the State nor its agencies are `persons'
within the meaning of § 1983." Id. (citing Will v. Michigan Dept. of
State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 2312, 105 L.Ed.2d 45
(1989)).

[64] May responds by citing an unpublished opinion from the Dallas Court
of Appeals for the proposition that the denial of the sovereign immunity
as a defense may not be raised by interlocutory appeal because it
concerns the merits of his section 1983 claim and not the question of
immunity. We remind counsel of the provisions of Texas Rule of
Appellate Procedure 47.7 which prohibit the citation of unpublished
opinions as authority. He also cites Cameron County v. Carrillo, 7
S.W.3d 706 (Tex.App.--Corpus Christi 1999, no pet.), as support for his
position that the denial of summary judgment based on sovereign
immunity is not subject to interlocutory appeal. Carrillo actually held
that the county could not bring an interlocutory appeal from the denial
of a claim of sovereign immunity. This is so because the language of
the statute governing interlocutory appeals provides such appeals may
be brought from an order which "denies a motion for summary
judgment that is based on an assertion of immunity by an individual
who is an officer or employee of the state." Tex. Civ. Prac. & Rem.
Code Ann. § 51.014(a)(5) (Vernon 1997) (emphasis added). In Carrillo,
the appellant was the county. Here, appellants are individuals and fall
within the statute. See also City of Robstown v. Ramirez, 17 S.W.3d
268, 276 (Tex.App.--Corpus Christi 2000, pet. filed).
[65] Appellants established that they were entitled to sovereign immunity on
May's section 1983 claims to the degree they were sued in their official
capacities. Because May failed to establish a waiver of that immunity,
appellants were entitled to summary judgment to that extent and the
trial court's denial was error.

[66] Appellants' fourth and final issue concerns May's claims against them
in their individual capacities under section 1983. Those claims assert
the denial of his procedural and substantive due process rights.
Qualified immunity against section 1983 claims requires proof of
effectively the same elements as official immunity under Texas law.
See Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396
(1982). In Harlow, the Court stated the good faith element as whether
the official's conduct "violate[s] clearly established statutory or
constitutional rights of which a reasonable person would have known."
Id. at 818.

[67] Appellants' argument in support of this issue mirrors the arguments

made in support of their second issue. This includes the proposition that
May was not excluded from the department and therefore there was no
impact on his clinical privileges or status as a faculty member. As we
noted above, because this premise is based on a disputed question of
fact, we must reject it for purposes of reviewing the summary judgment
motion. The threshold issue is whether, accepting his evidence as true,
the record supports May's allegation that he suffered the deprivation of
protected property rights.

[68] May's argument also tracks the argument presented in response to

appellants' second issue. Citing Wagner, supra, he argues that the
university tenure policies gave him a contractual right to specific duties
and his assignment as associate dean with "menial assignments" and
"substantial reduction in pay" deprived him of protected liberty and
property interests. The record does not support this contention.

[69] As discussed above, the professional staff bylaws imposed no limitation

on the dean's power to remove a department chair. Without such
limitations, there is no property interest in that position. Kruger, supra.
Similarly, Board of Regents Policy 06.04 controverts May's contention
that he had a right in specific duties. That policy expressly provides a
faculty member's appointment is subject to adjustments in salary,
administrative position, and duties. Without a contractual right to
 specific duties, May did not have a property interest implicating due
process rights.

[70] May did, however, have a protectable property right in his clinical
privileges, as shown by the professional staff bylaws and clearly
established law. See Woodbury, 447 F.2d at 842; Greenwood, 163 F.3d
at 119. Assuming, as we must, that Williams barred May from the
department, May was deprived of his right to exercise his clinical
privileges without notice or a hearing. The evidence shows Williams
was aware of the policies establishing procedural prerequisites for
actions adversely affecting clinical privileges.

[71] Although they had no authority to make any decision which denied
May of a clearly established right under the federal constitution, May
seeks to preclude Kohler and McCartney's showing of immunity by
arguing their "unfounded attacks on Dr. May's mental status, leadership,
and professional competence" were causal factors in Williams's actions.
Our holding that May's clinical privileges were the only protectable
property right affected by appellants' actions limits the issues
dispositive of McCartney and Kohler's immunity claim. May has not
alleged that any conduct of Kohler led to the denial of notice or a
hearing with regard to his clinical privileges. Therefore, she was
entitled to qualified immunity on May's section 1983 claims.

[72] There is evidence in the record that McCartney had a conversation with
Williams in which McCartney opined that a review of May's clinical
ability should not be undertaken because any possible outcome would
be harmful to everyone involved and "should be avoided." If accepted
as true by a jury, this evidence could support a finding that McCartney
engaged in conduct which contributed to the deprivation of May's rights
to procedural due process. The trial court properly denied McCartney's
claim of qualified immunity on this aspect of May's section 1983 claim.

[73] May presents additional arguments with regard to his substantive due
process claims. He contends we have no jurisdiction to consider this
issue because it concerns the merits of his claim rather than the question
of immunity. Appellants cite no relevant authority in support.

[74] Substantive due process protects a person from the deprivation of

property or liberty by arbitrary state action. Simi Investment Co. v.
 Harris Co., No. 99-20686 (5th Cir. December 21, 2000). Our review is
limited to the claims arising from what we have found to be the sole
protectable property right of May, his clinical privileges.

[75] Because the record affirmatively shows Kohler did not engage in any
conduct which prevented May from exercising his clinical privileges, it
establishes her qualified immunity as to May's substantive due process
claims.

[76] May has presented summary judgment evidence that Williams and
McCartney engaged in conduct which excluded him from the
department facilities, effectively suspending his clinical privileges.
Other evidence, including correspondence between May, Williams and
McCartney, shows they had no specific concerns with regard to May's
medical competence. *fn4 Appellants have failed to conclusively
establish McCartney and Williams's qualified immunity on May's
substantive due process claims.

[77] Summary

[78] In summary, we hold the trial court erred in denying appellants'

summary judgment based on immunity as to the following claims: all
claims asserted against Williams, McCartney and Kohler in their
official capacities; claims asserted against Williams in his individual
capacity except for claims for denial of due process with regard to the
suspension of May's clinical privileges; claims against McCartney in
his individual capacity except for claims for the denial of procedural
due process with regard to the suspension of May's clinical privileges;
and all claims against Kohler in her individual capacity. As to the
claims we hold the trial court erred in denying judgment, those portions
of the trial court judgment are reversed and remanded for further
proceedings consistent with this opinion. The remainder of the trial
court's judgment is affirmed.

[79] Publish.

Opinion Footnotes
 [80] *fn1 Bob Dickenson, Senior Justice, sitting by assignment.

[81] *fn2 The document index indicates that excluded portion of the
document contained sections entitled "concept of tenure" and "purpose
of tenure."

[82] *fn3 The record suggests that most of what was described as personal
work consisted of preparing correspondence concerning the health and
treatment of May's mother.

[83] *fn4 It is important to distinguish between conduct initially excluding

May from the department, and the process used to return him to active
practice after at least two years away from surgery.

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