Due Process claim depends on constitutionally protected property interest

By his third and fourth points of error, Phelan contends the trial court erred in granting Texas Tech's motion for
summary judgment because Texas Tech denied his due process rights and liberty interest in violation of Article 1
§ 19 of the Texas Constitution. Texas Tech contends there are no triable issues of fact related to Phelan's claims
and that it is entitled to summary judgment as a matter of law. Specifically, Texas Tech contends there is either
no cause of action as a matter of law or there is no causal connection between the alleged acts of Texas Tech
and Phelan's claims of damage.

Due Process Claims

Phelan asserts the trial court erred in granting summary judgment in Texas Tech's favor on his due process
claims. In support, Phelan contends he could not be non-reappointed except for cause following a hearing
because he had acquired tenure and, alternatively, had acquired de facto tenure or tenure by default.

The due course clause of the Texas Constitution provides:

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.

It is well settled that although the due process clause of the Fourteenth Amendment and the due course of law
provision of the Texas Constitution slightly differ in their language, the differences "are without meaningful
distinction." University of Tex. Med. Sch. v. Than, 901 S.W.2d 926, 929 (Tex. 1995); Hartford Casualty Insurance
Company v. State, 159 S.W.3d 212, 216 (Tex.App.-Austin 2005, pet. denied). Although Texas courts are not
bound by federal due process jurisprudence, Texas courts traditionally follow federal due process interpretations
and consider federal decisions on these matters persuasive authority. Than, 901 S.W.2d at 929.

A constitutionally protected property interest is defined as an individual entitlement grounded in state law which
cannot be removed except for cause. County of Dallas v. Wiland, 124 S.W.3d 390, 396 (Tex.App.-Dallas 2003,
no pet.). To have a benefit or property interest protected by procedural due process, one must have a legitimate
claim of entitlement rather than an abstract need, desire, or unilateral expectation. See Board of Regents of
State Colleges v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972); Govant v. Houston
Community College System, 72 S.W.3d 69, 76 (Tex.App.-Houston [14th Dist.] 2002, no pet.). Property interests
are not constitutionally created; rather they are created and their dimensions are defined by existing rules or
understandings that stem from an independent source, such as state law, rules, or mutually explicit
understandings that secure certain benefits and support claims of entitlement to those benefits. Tarrant County
v. Van Sickle, 98 S.W.3d 358, 363 (Tex.App.-Fort Worth 2003, pet. denied); Martine v. Board of Regents, State
Senior Colleges of Texas, 578 S.W.2d 465, 470 (Tex.Civ.App.-Tyler 1979), appeal after remand, 607 S.W.2d
638 (Tex.Civ.App.-Austin 1980, writ ref'd n.r.e.).

To have a property interest in public employment, one must prove that he or she has a legitimate claim of
entitlement to continued employment. Jordan v. Jefferson County, 153 S.W.3d 670, 674 (Tex.App.-Amarillo 2004,
pet. denied). In analyzing a procedural due process claim, we apply a two-part test to (1) determine whether the
plaintiff has a property or liberty interest entitled to procedural due process, and (2) if so, to determine what
process is due to sufficiently protect that interest. Hartford, 159 S.W.3d at 216; County of Dallas, 124 S.W.3d at
396.

In Texas, continued employment generally depends upon the will of the employer. Jordan, 153 S.W.3d at 674.
Unless there is specific agreement to the contrary that dictates otherwise, an employee can be released for
"good reason, bad reason, or no reason." Id., citing Montgomery County Hosp. Dist. v. Brown, 965 S.W.2d 501,
502 (Tex. 1998). Moreover, if there is no substantive limitation on a university's power to remove a faculty
member, the faculty member can be terminated without notice or a hearing because no property interest exists
which implicates the protections of the federal or Texas Constitutions. McCartney, M.D. v. May, M.D., 50 S.W.3d
599, 607 (Tex.App.-Amarillo 2001, no pet.). Therefore, whether Phelan lacks formal contractual or tenure
security in continued employment at Texas Tech is highly relevant to his procedural due process claim. See
Perry v. Sindermann, 408 U.S. 593, 599, 92 S.Ct. 2694, 2698, 33 L.Ed.2d 570 (1972).

The general rule is that a faculty member's employment is subject to their contract and the school's operational
policies. Bowen v. Calallen Independent School District, 603 S.W.2d 229, 233 (Tex.Civ.App.-Corpus Christi 1980,
writ ref'd n.r.e.). The mere showing that a faculty member was not rehired in a particular job, without more, does
not amount to a showing of a loss of either property or a liberty interest. Sindermann, 408 U.S. at 599, 92 S.Ct. at
2698. Likewise, the mere fact that a faculty member has been repeatedly rehired for consecutive one year terms
does not constitute evidence that the school had impliedly contracted with him or her to renew their contract
every year. Hix v. Tuloso-Midway Independent School District, 489 S.W.2d 706, 710 (Tex.Civ.App.-Corpus Christi
1973, writ ref'd n.r.e.).

Per Texas Tech's Regents' Rules, Faculty Handbook and Operating Procedures, Phelan had not received tenure
prior to his non-reappointment in May 2005. The Board of Regents had not admitted him to tenure, and he had
served only four years of the maximum probationary period of six years. Moreover, Phelan had served in a
special full-time appointment as a Research Assistant Professor for only three years, 1998-2001, and needed
three more years before he attained an employment status requiring dismissal only for cause.

Alternatively, Phelan contends he attained de facto tenure and/or tenure by default because he had been
employed by Texas Tech for seven years under circumstances that gave him an expectation that he would
receive tenure in 2005. However, where a university has published written procedures governing tenure such as
Texas Tech's Regents' Rules, Faculty Handbook and Operating Procedures, the legitimacy of a claim to tenure
acquired outside the procedures is vitiated because there is no basis for mutuality. Unless otherwise provided for
in university rules, there is no "common law" tenure, de facto tenure, or tenure by default. LaVerne v. University
of Texas System, 611 F.Supp. 66, 69 (S.D. Tex. 1985). Because de facto tenure and tenure by default would be
acquired outside Texas Tech's procedures, they fail as a matter of law. (6)

Phelan was an at-will employee employed pursuant to annual contracts that expired by their own terms. See
Turner v. Joshua Independent School District, 583 S.W.2d 939, 942 (Tex.Civ.App.-Waco 1979, no writ). Under
Texas Tech's rules, he was entitled to a notice of non-reappointment by issuance of a terminal contract for one
academic year. He received the required notice on non-reappointment and, at his request, review by a faculty
committee. Phelan claims that Texas Tech did not follow its procedures related to his appeal of
non-reappointment to the Tenure Advisory Committee. He asserts that it was improper for members of the
Committee, or for non-members of the Committee, to serve on the faculty Committee assembled to hear his
appeal of non-reappointment and for Eibeck's draft response to his grievance to be distributed at a Committee
meeting. We disagree. The Regents' Rules expressly permit members of the Tenure Advisory Committee, or their
appointees, to serve on the faculty committee. And, although Texas Tech's grievance procedure indicates that
the procedure does not apply to grievances related to non-reappointment and termination, there is no reciprocal
provision regarding appeals of non-reappointment. In fact, the Committee sets its own rules and can accept, or
reject, any oral or written statements. In short, there is no prohibition, as Phelan contends, against the Committee
considering any evidence including Eibeck's draft response to Phelan's grievance. We also note that Phelan
cites to no authority, legal or otherwise, in support of his contention that he was entitled to notice of the time and
place of the meeting where the Committee considered his appeal, a transcription of the meeting, or a list of what
was considered by the Committee in reaching its decision to affirm his non-reappointment. Neither has he cited
any authority authorizing a non-reappointee to appeal the composition of the Committee appointed to consider
his appeal. The Committee considered his submission with other evidence and upheld his non-reappointment.

Phelan also contends that because Texas Tech established some procedure for review of his
non-reappointment, it intended to elevate his status to something more than an at-will employee. Simply because
Texas Tech provided some procedure for faculty that are non-reappointed does not mean that it intended to
expand by implication the employment rights of a faculty member who is non-reappointed beyond those set forth
in its Regents' Rules. See Wells v. Hico Independent School District, 736 F.2d 243, 254-55 (5th Cir. 1984), cert.
dism'd, 473 U.S. 901, 106 S.Ct. 11, 87 L.Ed.2d 672 (1985). These procedures relate to only non-reappointment,
not contract renewal or tenure. Id. Moreover, Texas does not recognize implied teaching contracts. See Burris v.
Willis Independent School District, Inc., 713 F.2d 1087, 1090-91 (5th Cir. 1983).

Phelan's non-reappointment was not tantamount to dismissal or discharge because his contract for the specified
time of a year automatically expired at the end of its term. See Bowen, 603 S.W.2d at 235. If Phelan had any
expectation that he would be renewed for an additional year, or years, his expectation was unilateral. See
Govant, 72 S.W.3d at 76; Hix, 489 S.W.2d at 711. Moreover, no cognizable claim exists because Texas Tech
paid Phelan his full salary under his existing contract. Kinsey v. Salado Independent School District, 950 F.2d
988, 997 (5th Cir. 1992), cert. dism'd, 504 U.S. 941, 112 S.Ct. 2275, 119 L.Ed.2d 201 (1992). Thus, Phelan's
due process claims fail as a matter of law and his third point of error is overruled.

Source Opinions:

Phelan v. Texas Tech Univ., No. 07-07-0171-CV (Tex. App. - Amarillo, Jan. 23, 2008, pet. denied) (nonrevewal of
nontenured faculty member, Texas Whistleblower Act claim, due process, no protected interest in light of at-will
employment, liberty interests in professional reputation)