dissenting.
I dissent. Simply stated, the question before the trial court and this court is PROCEDURAL DUE PROCESS in the context of a hearing held by a state academic institution, i.e., the medical school of the University of Texas.
Although the majority holds that “it was well within the trial judge’s range of proper discretion to determine that Than offered some evidence that ... the hearing [was] fundamentally unfair by substantive due process standards” (emphasis added), the fact is, the trial court said nothing whatsoever about substantive due process. Rather, the trial court based its ruling entirely on procedural due process, which should be the subject of this appeal and the foundation for deciding whether the trial *433court abused its discretion. The majority, in my opinion, misses the true issue here.1
Before addressing the trial court’s findings on the school’s alleged violations of Than’s procedural due process rights, I will briefly address what due process the school owed Mr. Than in the first place. Due process requires that, before a disciplinary dismissal may be effected, the student must “be given oral or written notice of the charges and evidence against him, and the opportunity to present his side of the story.” Eiland v. Wolf, 764 S.W.2d 827, 833 (Tex.App.—Houston [1st Dist.] 1989, writ denied). See also Dixon v. Alabama State Bd. of Education, 294 F.2d 150, 158 (5th Cir.1961), cert. denied, 368 U.S. 930, 82 S.Ct. 368, 7 L.Ed.2d 193 (1961). Whenever a student faces possible expulsion, this “opportunity” must be in the form of a hearing that gives the school’s authorities the chance “to hear both sides in considerable detail.” Id. at 159. However, “[t]his is not to imply that a full-dress judicial hearing, with the right to cross-examine witnesses, is required.” Id. The student should be given the names of the witnesses against him and the subject of their testimony, the opportunity to present his defense to the charges and to produce oral and written evidence in his behalf, and the chance to inspect the written results and findings of the hearing. Id. “If these rudimentary elements of fair play are followed ... the requirements of due process of law will have been fulfilled.” Id.
Than received absolutely all of what he was entitled to under the above authorities. No more was, or should have been, required. As Justice White, writing for a majority of the United States Supreme Court in Goss v. Lopez, 419 U.S. 565, 583, 95 S.Ct. 729, 740, 42 L.Ed.2d 725 (1975), succinctly stated:
To impose ... even truncated trial-type procedures might well overwhelm administrative facilities in many places and, by diverting resources, cost more than it would save in educational effectiveness. Moreover, further formalizing the [ ] process and escalating its formality and adversary nature may not only make it too costly as a regular disciplinary tool but also destroy its effectiveness as part of the teaching process.
The trial court found the school violated Than’s procedural due process rights by not following its own rules and regulations as follows:
1. The school failed to allow Than to cross-examine witnesses, specifically Paul R. Kelley, Ph.D., the person who wrote the letter from the NBME that was used as evidence at the hearing;
2. The school failed to give notice to Than that his academic record would be presented at the hearing, specifically, his *434academic performance on a psychiatry NBME board exam;
3. The school allowed the hearing officer, Dr. Russell, to consider additional evidence after the hearing was concluded and outside the presence of Than; specifically, after concluding the hearing, the hearing officer visited the classroom where the incident of cheating occurred;
4. The proctors failed to follow the school’s guidelines in not notifying Than of their concerns during the examination and removing him from the examining room.
I note for the purpose of this analysis that the trial court based all of its findings of violations of Than’s procedural due process on the failure of the academic institution to follow its own rules and regulations in connection with hearings of this type. The majority states, however, that “[w]e do not hold that the alleged failure of the medical school to follow its own rules and procedures was a per se violation of Than’s due process rights.” It then states that “the trial court was entitled to examine the whole picture to determine whether Than presented some evidence that the medical school’s cumulative violation of its rules and procedures showed his probable right of recovery.”
I will review the individual findings of the trial court in order to present an accurate view of the “whole picture”. I disagree with the majority’s theory that an appellate court need not review a trial court’s individual findings in order to determine whether the trial court abused its discretion. How can one judge the fitness of the whole without examining the individual parts? In my view, one cannot; the soundness of the trial court’s decision should be evaluated by looking at each aspect, each facet of that decision. The majority has forsaken this more scrutinous approach, and has instead elected to take a panoramic view of the decision as a whole.
In regard to the trial court’s first finding, we must determine whether cross-examination in an academic institution’s hearing process is required under the Fourteenth Amendment Due Process Clause. Our court, as well as the United States Fifth Circuit Court of Appeals, has directly spoken on this very point. See Boykins v. Fairfield Bd. of Education, 492 F.2d 697, 701 (5th Cir.1974), cert. denied, 420 U.S. 962, 95 S.Ct. 1350, 43 L.Ed.2d 438 (1975); Dixon, 294 F.2d at 159; University of Houston v. Sabeti, 676 S.W.2d 685, 688-89 (Tex.App.—Houston [1st Dist.] 1984, no writ). All of these cases support the proposition that the right of cross-examination in a hearing conducted by an academic institution is not a right that is protected under the Due Process Clause. Boykins, 492 F.2d at 701; Dixon, 294 F.2d at 159; Sabeti, 676 S.W.2d at 688-89.
Nevertheless, Than was afforded the opportunity to cross-examine all of the witnesses produced by the school at the disciplinary hearing, and in fact exercised his right to cross-examine all of those witnesses. Apparently, the trial court found that the failure of the school to produce the witness who wrote the letter from NBME, i.e., Kelley, for Than to cross-examine is what violated his due process rights under the Fourteenth Amendment. There is no rule of law or procedure that compels one party to produce a witness solely for the purpose of cross-examination by the opposing party. There is nothing in the record that indicates that there was even a request from Than for the school to produce Kelley as a witness at the hearing. There is nothing in the record that indicates that Than requested the opportunity, or ever intended, to cross-examine Kelley. At most, Than had the right to cross-examine the adverse witnesses that appeared at the hearing. Boykins, 492 F.2d at 702. He was indisputably afforded this right. I would hold that the right to cross-examination under these facts does not rise to the level of a due process right, and that even if it does, Than was clearly afforded this right.
The trial court also found that the school’s failure to give Than notice that his academic record would be presented at the hearing was a violation of his due process rights. The question presented is whether failure to notify a student, involved in a hearing conducted by an academic institu*435tion, of the evidence to be presented against him rises to the level of a violation of his due process rights.
It is not necessary to engage in an analysis of whether this specifically violates the Due Process Clause, because the record before this Court demonstrates that Than did receive notice that his whole academic record would be involved in the hearing. More specifically, the following paragraph was contained in a letter from Dr. Margaret McNeese to Than:
As Associate Dean For Student Affairs, Dr. McNeese may also testify about any other aspects of the medical school or of Mr. Than’s student record that are requested by the hearing officer.
(Emphasis added.) In addition, the following occurred at the injunction hearing:
Defense counsel: As of April 11th you had full notice of the evidence that would be presented against you, didn’t you? Mr. Than: Yes.
The trial court’s conclusion that Than did not receive notice that his academic record would be presented at the hearing is not reasonably supported by the evidence and does not present a violation of his due process rights.
I now consider the next finding by the trial court, that the medical school “deviated from its own rules and regulations of minimal guarantees of due process as expressed in the Regent’s Rules” when the hearing officer was allowed to visit the exam room after the hearing was concluded and outside of Than’s presence. Before beginning my analysis, I note that the majority characterizes this visit as “ex parte.” “Ex parte” means an act which is done “without notice to, or contestation by, any person adversely interested.” Black’s Law Dictionary 517 (5th ed. 1979). The record indicates, as will be shown below, that Than had notice of the impending visit and that, far from contesting the visit, he actually asked to come along. While he also testified that he was not allowed to go along, no other person accompanied the hearing officer, either.
The record demonstrates that at the conclusion of the hearing, the following occurred in front of Than:
Dr. Russell: All right. I believe that concludes the hearing.
Dr. McNeese: Do you want to look at this examination room or not?
Dr. Russell: Yes, I do.
At this point, Than made no objection to the visit.
In his testimony before the trial court, Than stated the following:
Defense Counsel: Now, regarding the hearing itself, you complain that Dr. Russell’s visit to the test room was improper, isn’t that right?
Mr. Than: Yes.
Defense Counsel: That’s because you weren’t there, isn’t that right?
Mr. Than: Yes.
Defense Counsel: But isn’t it true that you knew she was going to the test site? Mr. Than: I also did ask her, too, I asked her after the record have been finished. She’s walking out, I asked Dr. Russell can I come along and she say no, plain no. She told me she know where the room was. That was off the record. Defense Counsel: Did you ask her why? Mr. Than: No, because I didn’t think it’s appropriate to be a pest with the judge or the hearing officer.
In the record before this court is exhibit number five, which was introduced into evidence during the school’s hearing through the testimony of Rita Hesse, one of the proctors. This exhibit is a diagram of the room visited by the hearing officer. In her testimony, Hesse marked on the exhibit exactly where Than sat, where Ted Chiang sat, where the proctors stood, and where she stood to determine where Than was looking. She also marked on the exhibit where the students testifying in Than’s behalf sat. The diagram showed the configuration of the room and exactly how the chairs were arranged. Than did not question the authenticity or accuracy of the diagram. Other than to physically stand in the room where the event in question occurred, there was nothing left for the hearing officer to experience that had *436not already been demonstrated to her during the hearing. Than did not direct this Court or the trial court to any evidence considered by Russell that had not already been placed into evidence during the hearing, which took place before Russell entered the room. Nor does Than point to some conclusion Russell reached that she could not have reached from considering the diagram already put in evidence at the hearing, which occurred, again, before she entered the room.
Than asserts that Russell’s refusal to allow him to go into the room with her denied him the opportunity to provide relevant factual evidence and address any mistaken conclusions drawn from Russell’s visit. I disagree. Than points to no evidence that he would have provided to Russell, nor does he state in what way he would have addressed any mistaken conclusions Russell allegedly drew from being inside the room. What Russell saw in the room was simply cumulative of the diagram that had been introduced into evidence at the hearing. The proctors had testified that they could see Chiang’s paper when standing directly behind Than. They had drawn on the diagram where Than and Chiang sat in the room. Than did not question this testimony or the accuracy of the diagram. Russell did no more than sit in the seat designated by the diagram as the one in which Than sat on the day of the incident. She observed only what had been testified to earlier, i.e., that from where Than was sitting, he could see Chiang’s paper. Neither the trial court nor Than showed how Russell’s trip to the room without Than violated his due process rights. At best, this allegation involves so many speculative aspects that it is impossible to give credence to it. Regarding notice, Than knew that the room where the cheating occurred would be part of the evidence in this case, as demonstrated by this record. Under the facts in this record, I would hold that these allegations do not rise to the level of a violation of Than’s due process rights.
I will now address the final alleged procedural due process violation found by the trial court. The court found that the proctors’ failure to follow the school’s rules and guidelines in not notifying Than of their concerns during the examination violated Than’s constitutional due process rights. An institution’s violations of its own rules that do not rise to the level of due process do not constitute a violation of the Fourteenth Amendment. Levitt v. University of Texas at El Paso, 759 F.2d 1224, 1230 (5th Cir.1985), cert. denied, 474 U.S. 1034, 106 S.Ct. 599, 88 L.Ed.2d 578 (1985). Whether Than was entitled to something more by virtue of the University’s own rules is a matter of state law, not constitutional law. Id. Than does not deny that he had notice of the hearing. His only claim is that the proctors did not tap him on the shoulder during the exam as set out in the school’s regulations. This may have' violated the school’s rules, but it was nonetheless not a violation of Than’s due process rights.
I do not find that Than’s constitutional procedural due process rights were violated, and therefore I find no probable right of recovery because of the alleged violations. What would be “recovered” here is a new hearing, wherein Than is afforded due process. Because I would find that his due process rights were not violated in the first place, I would find that he has no probable right of recovery here, since in my view, he has already been afforded what he now seeks to “recover.”
The majority writes in terms of “the whole picture,” the school’s “cumulative violation of its rules,” and of “violations ... taken as a whole.” Yet, because I find no individual violations of due process, I can find no “cumulative” violation, either.
Although the trial court did not grant the temporary injunction based upon the school’s alleged violation of Than’s substantive due process rights, the majority insists on addressing the issue of whether Than’s substantive due process rights were violated, and supports its opinion on that basis. The trial court did not state in its findings that Than’s substantive due process rights were violated. However, because the majority raises the issue of substantive due process, I will address the substantive due process issues based on *437the limited amount of evidence in this record.
We have before this Court a full transcript of the hearing held by the school. Inasmuch as the majority does not fully set out the facts that support the hearing officer’s decision, the following is a statement of the facts as they appear in the record:
Than was in his third year of medical school. He took a national board exam in surgery on February 22,1991. During this exam, the proctors, Rita Hesse and Karen Winkler, personally and immediately reported the “irregular activities” of Allan Than that took place during the NBME exam to the Dean of Student Affairs. They then confirmed their conversation with the Dean of Student of Affairs by letter. Notice was given to Than, and he was sent all documents to be used in the coming hearing and advised as to the testimony of the witnesses which the school intended to call. Than was also informed that he would be allowed to cross-examine these witnesses. Than admitted in his testimony before the trial court that he had notice.
At the hearing, Karen Winkler testified that about 15 minutes into the exam she noticed that “Than was looking in the direction of the answer sheet of the student in front of him,” i.e., Ted Chiang. She watched him for 15-20 minutes and he kept glancing in the direction of Chiang’s answer sheet in rather quick, furtive glances. She contacted Rita Hesse, the other proctor in the room, and asked her to observe Than. She stated that Rita moved to a position which was directly beside Than and nothing happened for about 30 minutes. Rita then moved to the back of the room, whereupon Than resumed glancing at Chiang’s answer sheet. During this procedure, Dr. Polk, another proctor, had left the room and he was not told of the problem. Rita and Karen talked it over and felt that Than was cheating, so Karen went to the Office of Student Affairs and spoke to Dr. McNeese to find out how to handle the matter. She was told to pull Than out of the room. After leaving Dr. McNeese’ office, she went back to the exam room and discussed with Rita for about five to ten minutes how they were to accomplish this when Chiang picked up his paper, handed in his test, and left the room. From that moment on, Than did not once look up from his exam. Because of this, they did not pull him from the room.
Rita Hesse, the other proctor, stated that 30-40 minutes into the test, Karen said she had noticed irregular behavior by one of the students. She went to where Than was seated and waited 11-15 minutes, and nothing happened. She motioned to Karen that she didn’t see anything. They decided to continue to watch, not by his side, but from the back of the room. She stated “I watched in disbelief for approximately 15 to 20 minutes as Mr. Than repeatedly darted glances to his front left.” She stated that the looks were deliberate and consistent. She moved to the front of the room and stood in front of Than and determined that he was looking at Chiang’s answer sheet. She stated that because Than’s seat was misaligned with the other seats, he could see the answers of the student in front of him, Mr. Chiang, as well as those of the student to the left of him. She stated that Than stopped looking (1) when Chiang turned his answer sheet to the other side; (2) when she stood near him; and (3) when Chiang got up to go to the restroom. She also stated that Than never raised his head again once Chiang turned in his paper and left.2
Dr. McNeese then wrote to the NBME and requested an evaluation of Than’s test compared to that of Ted Chiang. She received the answer on March 11 and attempted to contact Than. She finally located him on March 12, and met with him immediately and fully discussed the charges. She again met with Than on March 18 about the matter. On April 4, she wrote Than a letter formally advising him of “academic misconduct by you in *438violation of section 3.22 of Chapter VI, Part One of the Rules and Regulations of the University of Texas (“Rules”) (enclosed).”
The above facts are the backdrop against which the majority has determined that Than’s substantive due process rights were violated. The majority states that it does not hold that the alleged failure of the medical school to follow its own rules and regulation is a per se violation of Than’s due process rights. Yet, again, this is the only basis on which the trial court supported its findings.
In my view, the trial court abused its discretion by concluding that Than has a probable right of recovery when that conclusion is not reasonably supported by the evidence. I also believe the trial court abused its discretion by misapplying the law to the facts.
A correct determination in this case, reached by applying the proper standard of review to the proper issue, would have the effect of furthering the following policy: The judiciary should not impose rules and standards that perfectly befit the proceedings in our trial courts on institutions such as medical schools in the name of due process, be it procedural or substantive, when due process has not been offended. I find support for this reasoning in Boykins, where Judge Gee, writing for the majority, wrote in relevant part as follows:
Appellants principally complain that much of the evidence upon which the expulsions were based consisted of what was technically hearsay ... [Appellants contend that they should be afforded] confrontation and cross-examination of witnesses, especially where severe punishments are meted out on disputed facts. We decline to do so ... [Under appellants’ argument] we stand but a step away from the application of the strictissimi juris due process requirements of criminal trials ... Important as they are, the rights at stake in a school disciplinary hearing may be fairly determined upon “hearsay” evidence ... We decline to place upon a board of laymen the duty of observing and applying the common-law rules of evidence.
Boykins, 492 F.2d at 700-701.
The majority has focused on the NBME letter, the so-called “ex parte” visit, and the motive testimony to justify its decision. In other words, the majority has upheld the injunction based on the issues of the right to cross-examination, a factfinder’s “misconduct,” and pretrial discovery. However, the same standards and rules which govern those issues in the courtroom world should not apply in the academic world. We should not stand behind a policy that makes our educational institutions, in effect, part-time mini-courts. Judge Gee wrote:
There is a seductive quality to the argument — advanced here to justify the importation of technical rules of evidence into administrative hearings conducted by laymen — that, since ... education is a thing of great value, comparable to that of welfare sustenance or the curtailed liberty of a parolee, the safeguards applicable to these should apply to it.
Id. at 701. The majority, in my view, has heard the siren song of this seductive argument and come to the wrong decision. It has hung the yoke of formal courtroom-style procedures around the neck of an educational institution.
I find that Than was afforded all the due process to which he was entitled under the Fourteenth Amendment of the United States Constitution, and I would dissolve the temporary injunction entered by the trial court.
. I believe the majority also applied the wrong standard to its inquiry into possible abuse of discretion. The majority states that “[i]f Than offered some evidence that the medical school acted arbitrarily and that the administrative hearing lacked fimdamental fairness ... the trial court did not abuse its discretion in concluding that he would prevail on the merits of his due process claim and in granting the temporary injunction.” The only case the majority relies upon to support this "standard of review" is Regents v. Ewing, 474 U.S. 214, 106 S.Ct. 507, 88 L.Ed.2d 523 (1985). In Ewing, a trial on the merits was held and the trial court ruled for the Regents, finding there was no evidence that the school violated Ewing’s substantive due process rights. Id. at 220, 106 S.Ct. at 510. The Sixth Circuit Court of Appeals reversed the trial court’s judgment; however, the Supreme Court reversed the circuit court’s decision. Id. at 220-21, 106 S.Ct. at 510-11. The Court held that the record showed the school did not act arbitrarily. and so the trial court’s findings on the merits were correct. Id. at 225, 227-28, 106 S.Ct. at 513, 514. The Court was not faced with deciding whether the trial court properly granted a temporary injunction and whether the trial court abused its discretion; rather, the Court reviewed the record to determine whether the school should have won on the merits. Id at 225, 106 S.Ct. at 513. Here, as the majority concedes, we are not to review the merits of Than’s claims; we are to decide whether the trial court abused its discretion by granting the temporary injunction. In such a case, a tried court abuses its discretion by misapplying the law to the facts or by concluding that an applicant has a probable right to recovery when such a conclusion is not reasonably supported by the evidence. State v. Southwestern Bell Tel Co., 526 S.W.2d 526, 528 (Tex.1975); Eastern Energy, Inc. v. SBY Partnership, 750 S.W.2d 5, 6 (Tex. App.—Houston [1st Dist.] 1988, no writ).
. Considering these facts, the majority obviously puts it lightly when it states that “[d]uring the exam, two of the proctors suspected that Than was glancing at another student’s answer sheet” (emphasis added).