University of Texas Medical School at Houston v. Than, 01-91-01431-CV

• Decision Date: 04 June 1992
• Docket Number: No. 01-91-01431-CV,01-91-01431-CV
• Citation: 834 S.W.2d 422
• Parties: 76 Ed. Law Rep. 1207 UNIVERSITY OF TEXAS MEDICAL SCHOOL AT HOUSTON, Appellant, v. Allan THAN, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 422

834 S.W.2d 422

76 Ed. Law Rep. 1207

UNIVERSITY OF TEXAS MEDICAL SCHOOL AT HOUSTON, Appellant, v. Allan THAN, Appellee.

No. 01-91-01431-CV.

Court of Appeals of Texas,

Houston (1st Dist.).

June 4, 1992.

Dan Morales, Atty. Gen., Leo L. Barnes, Tammy L. Stroud, Asst. Atty. Gens., Austin, for appellant.

Bruce A. Coane, Houston, for appellee.

Before OLIVER-PARROTT, C.J., and DUNN and WILSON, JJ.

ORDER

WILSON, Justice.

This is an interlocutory appeal from the trial court's grant of a temporary injunction. Appellee, Allan Than, asks this Court to grant his emergency motion to find appellant, The University of Texas Medical School at Houston (the medical school), in contempt for its alleged violation of the temporary injunction order issued against the medical school by the trial court on November 26, 1991. The pertinent part of the order states:

That Defendants treat Plaintiff, with respect to his continued studies and other activities within and in connection with medical school, such as registering for and attending classes, performing clinics and taking examinations, as a student in good standing.

Than is a fourth year medical student at the medical school. The trial court issued a temporary injunction against appellant, based on its finding that the school violated Than's right to due process regarding a disciplinary hearing. The trial court held that irreparable harm would result to Than if the injunction were not issued. Appellant filed its appeal of the temporary injunction and moved that the trial date of February 3, 1992, be reset.

Than was accepted to a University of Virginia Health Science Center residency, which requires that appellee submit a Certificate of Professional Education as part of its statutory provision for temporary licensure as a Virginia medical resident. The medical school has refused to submit the certificate.

Than is scheduled to graduate as a medical doctor on Friday, June 5, 1992. He has completed all of the studies necessary to graduate. Than is currently preparing for the FLEX examination that is required before a medical license may be issued. That examination is scheduled for June 18, 1992. In order to take the FLEX examination, Than must bring his diploma to the examination on the first day of the test.

This Court must consider Than's emergency motion for contempt, in which he asks us to find that appellant is in contempt of the temporary injunction order and to order that the school issue Than's Certificate of Professional Education to the University of Virginia Health Science Center on behalf of Allan Than, furnish Than with his medical diploma for the purpose of completing the FLEX examination, and order that Than be permitted to participate in commencement proceedings on June 5, 1992.

We are, however, reserving our ruling on the motion for contempt until submission of the appeal on the temporary injunction, which will take place on Tuesday, June 9, 1992, at 9:00 a.m. Pursuant to our authority under Texas Rule of Appellate Procedure 43(c), we order that Than be permitted by the medical school to participate in the graduation proceedings as would a student in good standing, without prejudice to either of the parties as to a final determination on the merits of his trial. The medical school is not required to actually issue a diploma to Than at the graduation. If the medical school furnishes Than with his diploma, it may be inscribed as follows: "Please be advised that there is litigation pending at this time between Mr. Allan Than and the University of Texas Medical School concerning Mr. Than's surgery NBME grade. The outcome of this litigation may or may not affect Mr. Than's recorded grade for surgery and his standing at the University," as permitted in the order for temporary injunction.

This order is made solely to preserve the rights of the parties and in no way should be construed as a ruling on the appellee's emergency motion for contempt or on the merits of the appeal from the temporary injunction.

We further order that oral argument on the appeal pending before this Court be set for Tuesday, June 9, 1992, at 9:00 a.m.

It is so ORDERED.

DUNN J., dissents.

DUNN, Justice, dissenting.

I dissent.

The appellee, Alan Than, has filed a motion for contempt in this Court and prayed for the following relief: (1) that the appellant, The University of...