1 John T. Boyd, Chief Jus tice (Ret.), Seventh Cou rt of Appeals, sitting by assignment . Tex. Gov ’t Code Ann. §75.002(a)(1) (Vernon Supp. 2003). NO. 07-02-0315 -CV IN THE COU RT OF APP EALS FOR THE SEVENT H DISTRICT OF TEXAS

AT AMA RILLO PANE L E MAY 12, 2003

______________________________ TEXAS TECH UNIVE RSITY HEALTH SCIENCESCENTER, APPE LLANT V. SANDEEP RAO, APPELLEE

_________________________________ FROM THE 99 TH DISTRICT COURT OF LUBBOCK COUNTY; NO. 2002-517,844; HO NORABL E MACKEY K. HAN COCK, JU DGE

_______________________________ Before JOHNSON, C.J., QUINN, J., and BOYD, S.J. 1
OPIN ION2 At te nd i ng an au to ps y i s p ar t o f t he med i ca l sc ho ol cu rr i cu l um. 2 Thisis an inte rlocutor y appeal fro m a trial court orde r ove rrul ing a plea to the jurisdiction and granting a tem porary injunction. For reasons we later state, we m odify the tem porary inj unction a nd, as m odified, aff irm t he trial cour

t order. The suit giving rise to the tem porary injunction w as brought

by appellee Sandeep Rao (Rao) against appellant Texas Tech University Health Sciences Ce nter (Tech). In the suit, Rao ass erted his fre e sp eec h rig htshad bee n cir cum scr ibed by Tec h’sact ion in dismissing him from Tech’sSchool of Medicine and sought equitable relief requi ring Tech to reinstate him . He s ought, and obta ined, the tem porary inj unction w ith wh ich we are concerned in which Tech was ordered to imm ediately reinstate Rao “as a student in good standing.” Factual Background
In 2002, Rao was enroll ed at Tech in the second year of a jo i nt MD /M BApr og ra m. He also served as a colum nist on Tech ’s student new spaper, the University Dai ly . On January 21, 2002, Rao and another stud ent attended an au topsy 2 conduc ted by Dr. Je rry Spencer, the director of Tech’s Divi sion of For ensic Pathol ogy. Dr. Spencer w as also the Lub bock County Medical Ex aminer. P rior to attending the autopsy, Rao s igned a confidentiality agr

eem ent in w hich he a gre ed h e would not reve al the name of the decedent

or “discuss the nature of a ny diagnosis or facts of the case w ith anyone outside of the professional staff.”3

On Jan uar

y 24 , 20 02, Raow rot e a colum n in the University Dai ly abouthis autopsy experience. In the colum n, with som e particularity, he described the date and tim e of the autopsy, that it was performed by Dr. Spencer, and the stated ca use of death. He al s o madesom e rema rks about Dr. S pencer ’s dem ea nor as he conducted t he autopsy. On January 27, 2002, Dr. S pencer filed a com plaint w ith Dr. Te rryMcM ahon, the Assoc iate Dean for Ed uca tion Pr

ogr am s, i n w hich he a llege d th at in publishing the colum n, Rao had violated portions of the University Code of P rofessional and Academ ic Conduct. In particular, he claimed that Rao had failed to com ply with directions of universityofficia ls, had failed to comply w ith the confidentiality agreement, and had made derogatory remarks about D r. Spe ncer.
After receiving the com plaint, Dr. McMahon notified Rao of the allegations and set
a hearing for February 18, 2002. On February 21, 2002, as a res ult of th e hearing, Dr. Richard Hom an, the Dean of the Schools of Medi cine and Bi omedical Sciences, notified Rao tha t th e He arin g Co m m itte e ha d re com m end ed t hat he b e dis missed an d that D r. Hom an saw no reason not to accept therecom menda tion. Dr. Hom an also advised Rao of his right to appeal the decision to an a p peal panel. A hearing was held before th e ap peal panel on March 8, 2002. On March 18, 2002, Rao w as notified that the appea l panel had found agai nsthim on thecharge of unprofessional conduct, had recom mende d thatRao receive probation through his third year clerkshipsand be r

equired towriteletters of apology

to the university

paper an d to Dr. Spencer.4

Additio nall y, on February 21, 2002, Dr. M cMahon form ally not if ied Rao of allegations against him of academ ic dishon esty in c onnection with the alleged offer to delivera copy of a past year’s neur osciences exam that had not been rel eased as a study aid. A hearing on that allegation was conducted, as a result of w hich the Hea rin g Com mitteefo und aga inst Raoand recom m end ed t hat he b e pla ced on a cad em ic probation, seek p rofess ional couns eling, and no t be allowed to s erve asa peer t utor o r allowed to h old any m edical school office. On March 27, 2002, Dr. Hom an notified Rao thatthe recom mende d sanctions would b e pl aced imm ediately in force as interim sanctions pending any appeal. He also notified Rao of his right to appeal the decision of the Hearing Com mittee. Ra o ch oseto a ppe al an d, o n A pril 1 0, 2 002 , af ter an A pril 3 hearing, the appeal panel found the evidence was sufficient to show that Rao com mitted the offense alleged and upheld the sanctions recom mende d by the Hearing Com mittee.
On Ap ril 25, 2 002 , D r. H om an is sue d hisfina l dec ision on b oth theaca dem ic dishonesty an d unprofessi onali sm allegations. In doing so, he sum marized the findings of the Hearing Com mittees a nd the appeal panels in both cases, and con clud ed t hat “in light of these two, s eparate, serious incidents,” he would dism iss Rao imm ediately from the School of Medicine. This, of course, led to the underl ying la wsuit and to the issua nce of the tem porary injunction before us.
Questions Presented5

Tech challenges the tem porary injunct ion by presenting four issues for our decision. Those issues are: 1) the trial court erred in denying Tech’s plea to the jurisdicti on because Tech, as a stateage ncy , ha s s ove reig n im m unit y; 2 ) th e inj unc

tion is v oid b eca useit f ails to set forth the reasons

for its issuance as required by Rule 683 of t he T exas R ulesof C ivil Procedure; 3) the trial court abused i ts discretion in granting the tempo rary injunction because Rao failed to establish a probability of recovery; and 4) the tem porary injunction is overly broad and constitutes an uncons titutional prior restrai nt on speech.
Jurisdiction
In argum ent under its first issue, Tech contends that Rao’ s failure to name an individu al in a uthority as a defendant in his suit deprived the trial court of j urisdiction to consider his c laim for reinstatem ent because Tech, as a state agency, ha s sovereign imm unity against a claim for unlaw ful actions of

its officials. Thus, as no suit of that nature may be m aintained against it, the trial courthad no j urisdiction to issue itsinterlocuto ry injunction. In support of that position, Tech primarily relies upon Bagg v. Uni v. of Texas Medical Branch , 726 S.W.2d 582 (Tex. App.–Ho uston [14 th Dist.] 1987, w rit ref’d n.r.e.)

. In that case, the pl ainti ff pled a vari ety o f c auses of action arising out of an alleged
wr ongful em ployee te rm ination agains t both s upervisor y em ployees of the U nivers ity o f Texas Medica l Branch and theentity its elf. The t rial court grante d a dismissal and
sum m aryjudgm ent against all the defendants. A s relevan t here, the appe llate court affirmed the dism issal aga inst theMe dica l Br

anc h an d in d oing so, opin ed in rather broad6

language thatsuits prem ised upon the alleged unlawful or unauthorized actions of state off icial s are not considered acts of the state agency, and because they are no t state actions and the statecannot be a proper party to sue, trial courts have no j urisdiction and such suit s m ay o nly b e m aintaine d ag ains t th e ind ividu als who w ere alleged to have acted unlawfull y. Id. at 585. Rao also ci tes cases such as Turner v. Texas Dept . of Mental Health& Mental

Retardati

on , 920 S. W .2d 415, 419 (Tex . App. –Aust in 1996, w rit denied); Di llard v. Austi n Indep. School D ist. , 80 6 S .W.2d 5 89, 598(Te x. Ap p.– Au stin 199 1, w rit denied); and Battl

eshi p Tex as Advi sory B oard

v. Texas Dynamics , Inc. , 737 S.W.2d 414, 418 (T ex. App.–Houston [14th Dist.] 1987, w rit dism’d w .o.j), which cite and rely upon Bagg in arri ving at si milar holdi ngs.
However, in City

of Beaumont v. Bouil

lion, 89 6 S. W .2 d 1 43 (T ex. 1995), the Texas Su pr eme Court had occasion to consider whe ther the re was an implied cause of action for damag es as a rem edy for unconstitutional conduct u nderthe free speech and f ree ass em bly

clauses of the Texas Constitution. In the cours e of its opin ion, itperform ed an historical ana lys is of such constitutional questions and concluded that although no such actions for dam ages m ay be m aintained, aggrieved persons m ay assert direct claims for equitablerelief against governmental entities for violations of the Texas Bill of Rights. Id. at149. Earlier, in Director o f Dept. o f Agriculture & Environme nt v. Pr i nting Industries Ass’n , 600 S.W.2d 264 (Tex. 1980), the court opined that an entityor person w hose rights have been viol ate d by

theunlaw

ful a ctio n of

a s tate of

fici al m ight

brin g a s uit

to rem edy the violation or prevent its occurrence. Id. at 265-66

. Indeed, in Alcorn v. Vaksman , 8777

S.W.2d 390, 403-04 ( Tex. Ap p.--Houston [1 stDist.] 1994, w rit denied), and Harrison v. Texas Dep’t of Criminal Justi ce–Institutional Div. , 915 S.W.2d 882, 88 8 (Tex. App.-
- Houston [1 stDist.] 1995, no writ), thesam e court that decided Bagg noted that although there ma y not be a cause of action for dam ages, a plaintiff whose constituti onal ri ghts have been violated may

sue for equitable relief. See also Texas State Employees Union v. Texas Workforce Comm’n, 16 S.W.3d 61, 66-67 (Tex. App.--Aus tin 2000, no pet. ); Univers ity of Texas Syste m v. Courtney , 946 S.W.2d 464, 469 (Tex. App. --Fort W orth 1997, writ denied); Bohannan v. Texas B d. of Cri minal Justice , 9 42 S.W .2 d 1 13 , 1 18 (T ex. App.-- Austin 1997, w rit denied).
The trial court had jurisdiction to consider Rao’s reques t for equitable relief. Tech’s first issue is overruled.
Fail ure to State Reasons for Issu ance
In pertinent

part, R ule of Civil P rocedure683 prov ides that every order granting an injunction or rest raining order “shall set forth the reasons for its iss uan ce; sha ll be spe cifi c in te rm s; [and ] sh all describe in reasonable detail and not by reference to the com plaint
or other docum ent, the act or acts sought to be restrained . . . .” Under its second issue, Tech’s challenge is limited to the asserted failure of the tem porary injunction to set forth the reasons

for its iss uance. In theorder gra nting the tem porary injunction, the trial court found that Rao “tend ered evide nce of imm inent harm , irreparab le injury and an inadequate legal remedy.”8

In advancing its challenge, Tech points out the adm onition i n Interfi rst Bank San Felipe, N.A. v. Paz

Constructi

on Company, 715 S.W.2d 640 (Tex. 1986), that the “requirementsof Rul e 68 3 are m andatory and m ust be strictly f ollowed. ” Id. at 641. Particularly citing Northcutt v. Warren, 326 S.W.2d 10 (Tex. Civ. A pp.--Texarkana 1959,
w rit ref’d n.r.e.), and University I nt erscholasti

c League v. Torres , 616 S.W.2d 355, 358 (T ex. Civ. App.--San A ntonio 1981, no writ), Tech contends that the reasons stated by the trial court f

or its issu ance of

the tem porary inj unction w ere m ere conclusory statem ents and were insuffici ent to comply with Rule 683 req uirements of specifi city.
Rao responds that thi s question was not preser ved for appel late revi ew because Tech never made any trial court complaint on the basis it no w raises. In rel evant part, Texas Rule of A ppellate Procedure 33.1(a) provides that as a prerequisite to presenting
a complaint for appel late revi ew, the record must show t hat t he com plain t was t im ely presented to the trial court with sufficient spe cifi c ity to m ake the trial court aware of the grounds for

com plain t un lessthespe cifi cgrounds we re apparent from the contex t. At the injunction hearing, no presentation or obje ction was m ade to the tem porary injunction on the basis now raised by Tech. There is a split of authority on the question of w hether a party can waive the right to com plain of afailu re o f a tem por ary inj unc tion to com ply

with Rule 683. While the Texas Suprem e Court has not w ritten on the subj ect, the great m ajority of the C ourts of Appeal whohave considered the question, w ithout a great deal of discussion, have concluded that9

the instruction of

the court in Paz

that the requirem ents of Rule 683 are m andatory m eans thatthe right to m ake appellate com plaint of a failure to strictly com ply with the rule is not waived by thefailure to m ake a trial court com plaint on that basis. See Big D P roperties, Inc. v. Foster

, 2 S.W.3d 21, 23 (Tex. App. --Fort W or th 1999, no w rit), and 360 Degree Communicat

ions Co. v. Grundman , 937 S.W.2d 574, 575 (Tex. Ap p.--Texarkana 1996, no writ).
However, in Emerson v. Fires Out, Inc. , 735 S.W.2d 492 (Tex. App.--Au stin 1987,
no writ), an appeal fromthe grant of a tem po ra ry in ju nction, the court noted that the general principles of sound jud i cial administration would appear to require that any objectionsto the form and content of an inj unction be pointed outto th e t ri al co ur t a t a ti me when the errors could be corrected. I t further observed that “[ i]t serves no good purpose to permit appellants to lie in wait and present t his error in form for the first time on appeal.” Id . at 494. Applying Texas Rule of Appellate Procedure 52(a), th e progenitor of present Rule33 .1 (a ), th e c ou rt he l d t ha t t he fa i l ur e t o ma ke a trial obj ection to the formof the injunction waived the right to an a ppellate c omplaint on that bas is. Id. at 493-94. We agree with that reas oning.
Bottom ed on its premise that i ts right to complai n was not waived, Tech also argues thatthe trial court’s stated reasons for issuing the injunct ion were not suf fici ent ly s pec ific to me et the requiremen ts of Rule 683. In doing so, it cites and relies upon Un iver sity In te rs ch ol as ticLeague v. Torres , 616 S.W .2d 355 (Tex. Civ. App.--San A ntonio 1981, no10

writ). In that case, the court opined that a recitation of “no adequate rem edy at law” and “irre par ableha rm” was conclusory and not sufficient to com ply with Rule 683. Id. at 358. However, in the recent case of Pineb r ook Properti

es, Ltd. v. Brookhaven Lake Prop. Owners Ass’n , 77 S.W.3d 487 (Tex. App.--Texarkana 200 2, p et. den ied) , th e co urt held that a recitation of the reasons an injunc tion issued was beca use the defendants had no adequate remed y at law, the rights inv o lved were unique and irreplaceable, and m oney damag es would not be a s ufficient remedy were suf ficient to meet Rule 683 requisites. Id. at504-05. We agree with that holding. Thereasons

listed in the injun ction bef ore us a re very similar to those before the Pineb rook court and are sufficient to com ply with Rule 683. For the above reasons, Tech’ s second issue is overruled.

Failure to E stablish P robability of Recovery
To be entitled to a te m porary injun ction, an applicant m ust sh ow aprobable inj ury and a pr oba ble right to recover at the final hearing. Walling v. Metcalfe , 863 S.W.2d 56, 57 (Tex. 1993). The d ecision to grant or den y a tem por

ary inj unc tion w ill only be reversed
on a showing of

an abuse of

discretion. Anderson Chemi cal Company, Inc. v. Green , 66 S.W.3d 434, 437 (T ex. A pp.--Am arillo 2001, no pet.). A trial court abuses its discretion when it misapplies the law tothefac ts o r w hen theevid ence do es n ot r eas ona bly

support the findings. Id. In m ak ing our review, w e draw all legitimate inferences from the evidence in the li ght most favorable to the trial court’s judgm ent. Id . W here, as here, the11

trial court

ma de no find ingsof f

act and con clus ionsof l aw , th e j udg m ent m ay b e up held on any legal theory supported by the ev idence. Id

. Tech argues that the inj unction was im properly entered because there is no evidence showing that Rao was expelled for having engag ed in protected speech. I n relevant part, article I, section 8 of the Texas Constituti on provid es: “E ver y pe rso n sh all be at liberty to speak , wr ite or publish his opini ons on any subj ect . . . .” Those free speech rights are greater than those protec ted by the First Am en dment to the United States Constitution. See e. g. , Da ve np ort v. Ga rc ia , 834 S.W.2d 4, 10-1 2 (Tex . 1992); Alcorn v. Vaksman , 877 S.W .2d at 401. The Texas C onstituti on, in posi tive terms, guarantees that every person h as the right to speak, write, or publish their opinion on any subject , while the Federal Constitution express es First A mendmen t r i gh ts i n n eg at i ve te rms and simply restricts g ove rn me ntal interference with such freedom s. Jones v. Memori al Hosp. System , 746 S.W.2d 891, 893 (Tex. App. --Houston [1 st Dist.] 1988, no w rit). Even though a differen ce exists between the two guarantees, feder al ca ses hav e his tor icall y been looked to by Texas courts as an aid in determ ining free speech questions. The reasoning of the Texas courts being if the evidence is sufficient to show a violation o f federal standards, it m ust also be sufficient to show a violation of

state guarantees. See e.g., Vaksman , 877 S.W.2d at 401.
W hether spe ech add res sesa m atter o f pu blic concern is determ ined by the content, fo rm, and contex

t of the speech. Connick v. Myers , 461 U.S. 13 8, 146, 103 S.Ct . 1684,12

1690, 75 L.Ed.2d 70 8 (19 83) . When t he s pee ch r elates to an y m atter o f po litic al, s ocia l,
or other concern to th e comm unity, it add resses a m atter of public concern and it is not
necess arythat the speech alleg e a b rea ch of pu blic trust. Id. 461 U.S. at 146. Indeed, the Su pr eme Cou rt h as h eld t hat a pu blic em ployee’ s c om m ent in regard to an attem pt upon the life of the President of the United States to th e effect that if another attempt wasma de to assassinate the President, “. . . I ho pe they get him ,” was a com ment about a m atter of pub licconcern. Rankin v. McPherson , 483 U.S. 37 8, 386-87, 107 S.C t. 2891, 2898, 97 L.Ed. 2d 315 (1 987).
In Mt. Healthy

City Sch. Di

st. Bd. v. Doyle , 429 U.S. 27 4, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977), a schoo l district had failed to re hire a non-tenured teacher because of, am ong other things, a tele pho ne c all ma de to a local radio station. The Court set out the standards by which an individual’s entitl eme nt to constitut ional ly protecte d free speech
w ould be determ ined. Under that test, t he individual must have shown (1) h is conduct was protected, and 2) his conduct w as a m otivating factor in the acti on f or w hic h he seeks relief. Id. 429 U.S. at 2 87.
We agree with Tech thatfor Rao’s speec h activities to be constitutionally protected, theymu st have addressed a mat ter of public concern. Id. His column w as printed in the university newspaper, a publication which thetrial judge could reasonably conclude w as of general circulation. F urther, the column dealt with forensic pathology and m edical technique, ma tters which thetrial judge could reasonably conclude w ere of p ublic interest13

and concern. Additi onall y, the reco r d reveals tha t Dr. Spencer’s complaint was fact intensive in the sense that it was directed at the references m ade by Rao in the colum n.
While it is true that certain conduct m ight be pros cri bed that has an incidental limitation on s pee ch, suc h a p ros crip tion m ust fur the r an im por

tan t pu blic in terest, be unrelated to a general suppression of free speech, and be no greater than necessa ry to the furtherance of that interest. See e.g.,Uni ted States v. O’Bri en , 391 U.S. 36 7, 385, 88 S.Ct. 1673, 1 68 3, 20 L.Ed.2d 672 (1968) (finding valid a federal l aw crim inalizi ng the destruction or m utilation o f a dr aft regis tration ag ainst a First Am endm ent cha llenge). Under thetes tim ony

her e, t he t rial j udg e co uld r eas ona bly

conclude Rao’s cond uctdid not fit within those incidental limits. Viewed in the li ght by which we m ust view it in this limited interlocuto ryappeal, we cannot say the trial judge abus ed his discretion in g ran tin g the tem porary injunction. Tech’s third issue is overruled.

Over Broad
We must nex

t consider T ech’s fourth issu e in which it co ntends th e tem porary injunction is overly broad. In presenting this issue , Tech a vers th at parag raphs 8( d), 8(e), and 8(l)are overly broad. In paragraph 8(d), and in relevant part, Tec h is enjoined from mak ing, condoning, or perm itting “any statem ents to the effect that Rao has been ex pelled from the curriculum, th at he has com mitted any conduc t w orthy of ex pulsion, or that he sho uld be exp elled fromthe cu rriculum .” Paragraph 8(e), in relevant part, provides that Tech “shall not make - or condone or perm it an y facul ty, staff or m ember of the3 Tex. R. A pp. P. 43.2(b). 14

administration to make - any statements to the effect thatRao’s autopsy

article reveals that he lacks a mo ral compass or has a broken m oral compass .” In relevant part, paragraph 8(l)provides that Tech “shall not do any thing, or m ake any oral or written statem ent, that
w ould have the effect of i nterferi ng with Rao’s abil ity to si t for any other examinations - licensing or otherwise - or interfering in any m anner with Rao’ s participation in the medical school curriculum pending the trial of this cause.”
Tech ar gu es th e a bo ve pr ov is io ns ar e so br oa d a nd sub je ct to s ubjective interpretation that “they virtually deprive” Tech of reasonable notice of w hat it is prohibited from doing. In part icular, it re asons that to be enj oined from m aking statem ents “to the effec t” that Rao lacks a m oral compass “could include almost any negative statem ent regarding Rao.” It also p osits th at to beenj oined fro m ma king any statem ent or doing anything tha t w

ould have th e ef

fec t of inte rfe ring “in any m anner” with Rao’s participation in the m edical school curriculum “is so broad thatit could include acts or statem ents that
no reasonable person could anticipate as being em braced within the scopeof the order.” Accordingl y, it argues, in those regards, the acts proscribed in the i njunction are not suffici ently speci fic.
We agree that in certain aspects, the injunction is ov er broad and should be modified 3 in the following respects: Paragraph 8 i s modified to read as fol lows:15

d. Texas Tec h shall not make any statem ents that Rao hasbeen expelled from the curriculum or tha t he has com mitted any conduct w

orthy of expulsion. This is not intended, and shall not be construed as lim iting the Defendant’s handling and defense of this litigati on. e. This subparagraph is deleted from the injunction. l. Pending the trial of t his cause , Texas Tech will allow Rao to sit for exam inations - lic ens ing o r ot her w ise - cus tom arily

incident to Rao’s studies pending the final disposition of this cause and will allow him topar tici pate in them edical sc hoo l cur ricu lumpen ding suc h tr ial.
To the exten t we have m odified the tem porary injunction, Tech’sfourth issue is overruled.
In sum mary , all of Tech’ s issues are overruled, w ith the exception that its f ourth issue is g r anted to the ex tent of the m odification of paragraph 8 set out above. Accordingl y, with the ex ception of the m o dification we have set out, the judgm ent of the trial court is affirmed.
John T. Boyd Senior Justi ce Quinn, J., not participating.