
In The


Court of Appeals


Ninth District of Texas at Beaumont


____________________


NO. 09-03-577 CV

NO. 09-03-578 CV

____________________


CATHY TAYLOR, INDIVIDUALLY AND AS REPRESENTATIVE OF THE

ESTATE OF DOROTHY HEBERT, ET AL., Appellants


V.


ANATOMICAL BOARD OF THE STATE OF TEXAS, Appellee


AND


TIM KENNEDY, INDIVIDUALLY AND AS REPRESENTATIVE OF THE

ESTATE OF EDNA MAE KENNEDY, ET AL., Appellants


V.


ANATOMICAL BOARD OF THE STATE OF TEXAS, Appellee




On Appeal from the 172nd and 136th District Courts
Jefferson County, Texas

Trial Cause Nos. E-168,256 and D-168,353




OPINION

	This appeal is from the granting of a state agency's plea to the jurisdiction in two
cases subject to a pre-trial multidistrict litigation order. (1)  In trial court cause No. E-168,256 (Appeal No. 09-03-577 CV), which is filed in the 172nd District Court, the
plaintiffs are Cathy Taylor, Individually and as Representative of the Estate of Dorothy
Hebert, Roger Hebert and Jim Hebert; Elvia Sykes, Individually and as Representative of
the Estate of Peter Gordon Sykes; James Saylor, Individually and Representative of the
Estate of Pauline Emily Saylor; Barbara Barker, Individually and Representative of the
Estate of Larry Barnes; Tricia Deland, Individually and Representative of the Estate of
John T. Gardner; and Dale Soderman, Individually and Representative of the Estate of
Alfred Soderman.  In trial court cause No. D-168,353 (Appeal No. 09-03-578 CV), which
is filed in the 136th District Court, the plaintiffs are Tim Kennedy, Individually and as
Representative of the Estate of Edna Mae Kennedy; Matthew Langianese, Individually and
as Representative of the Estate of Norma Langianese, Joette Langianese, Michelle
Langianese; Debbie Zambardino, Individually and as Representative of the Estate of Obie
Ray Duncan, Dustin Duncan; Catherine Lee, Individually and as Representative of the
Estate of Peter G. Lee; and Jack W. Pryor, Jr., Individually and as Representative of the
Estate of Barbara Ann Hunt.  In both cases, the plaintiffs assert claims of negligence,
negligent supervision, negligent entrustment, negligence per se, breach of contract, and
constructive fraud against the Anatomical Board of the State of Texas ("the Board"), one
of eighteen defendants sued in connection with the mishandling of corpses donated through
the Willed Body Program administered by The University of Texas Medical Branch at
Galveston ("UTMB").  After conducting a hearing in which no testimony was taken, the
pretrial judge granted the pleas to the jurisdiction. The two groups of appellants raise
identical issues.  We affirm.
	In issue one, the appellants maintain they have adequately alleged a breach of a
special relationship such that they have standing to seek mental anguish damages against
the Anatomical Board.  These claims, they argue, sound in tort rather than in contract. (2) 
The First Court of Appeals recently rejected this argument in an appeal from the grant of
UTMB's pleas to the jurisdiction in two Galveston County cases subject to the same
multidistrict litigation order involved here.  See Noah v. University of Texas Med. Branch
at Galveston, Nos. 01-03-00985-CV and 01-03-00986-CV, 2004 WL 1794642 (Tex. App.--Houston [1st Dist.] Aug. 12, 2004, pet. filed) (not yet reported). (3)  Appellants' second
issue contends that the claims against the Board fall within the Tort Claims Act's waiver
of immunity because the appellants adequately allege their injuries were caused by the use
of tangible personal property.  
	A unit of state government is immune from suit and liability unless the State
consents.  Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542 (Tex. 2003).  The
plaintiffs must affirmatively demonstrate the court's jurisdiction by alleging a valid waiver
of immunity.  Id.  The Anatomical Board of the State of Texas is a state agency composed
of professors appointed by the chief executive officers of each school of chiropractic,
osteopathy, medicine, or dentistry incorporated in this state.  Tex. Health & Safety
Code Ann. § 691.002 (Vernon 2003). It distributes bodies to institutions and persons
authorized to receive bodies.  Tex. Health & Safety Code Ann. §§ 691.022(a); 691.030
(Vernon Supp. 2004).  Chapter 691, Health and Safety Code, grants rule making authority
to the Board but does not contain language waiving immunity.  See Tex. Health &
Safety Code Ann. §§ 691.001-.035 (Vernon 2003 & Supp. 2004); 25 Tex. Admin.
Code §§ 471.1-483.1 (2004); see also §§ 692.001-.016 (Vernon 2003 & Supp.
2004)(Texas Anatomical Gift Act).   
	The Tort Claims Act waives the State's immunity for personal injury caused by a
condition or use of tangible personal or real property.  Tex. Civ. Prac. & Rem. Code
Ann. § 101.021(2) (Vernon 1997).  Section 101.021(2) waives immunity for a use of
personal property only when the governmental unit is itself the user.  San Antonio State
Hosp. v. Cowan, 128 S.W.3d 244, 245-46 (Tex. 2004).  The plaintiffs allege that the
supervisor of UTMB's willed body program, Allen Tyler, was employed both by UTMB
and the Board, and that Tyler negligently commingled the ashes of the donors' bodies. 
The plaintiffs allege that the Board breached its duty to the plaintiffs to oversee UTMB's
willed body program, to carry out periodic effective inspections of the program's facilities
and records, and to ensure that required records were being maintained.  They allege that
the Board breached its duty to ensure that its agents and employees properly used the
equipment and tangible personal property of UTMB, and to ensure that the persons
working in the program comply with all applicable laws and regulations in the handling of
willed bodies.  They further allege that the Board breached its statutory mandate to
investigate persons or institutions suspected of improperly handling a body and to revoke
authorization to receive willed bodies if improper handling has occurred, and further to
approve all out-of-state transfers of the bodies willed to the State.  The alleged failures of
the Board to oversee the program, to inspect facilities and records, to supervise the use of
tangible property, to investigate, and to review transfers do not involve the use of tangible
personal property by the Board.  Thus, those claims cannot be maintained under Section
101.021(2) and the Board's immunity from suit is not waived.  See University of Texas
Med. Branch at Galveston v. York, 871 S.W.2d 175, 178-79 (Tex. 1994). (4) 
	The plaintiffs' petitions do allege, however implausibly, that Allen Tyler is an
employee of the Board.  Tyler allegedly sold bodies for profit and commingled the
cremated remains of different donors.  The appellants contend the willed bodies were
themselves the tangible personal property used while they were "embalmed, stored,
dissected, and/or segmented to be used in various types of biomedical research." (5)  On
appeal, the families contend the personal injury sustained is the mental anguish they
suffered when the gruesome details of the disposition of their loved ones' corpses were
imparted to them.  The appellee contends the pleaded common-law tort claim is, in reality,
a claim for breach of contract that is not actionable against the State because the appellants
have not obtained legislative consent to sue.  This is the issue resolved by the First Court
of Appeals in Noah, by the Fourteenth Court of Appeals in another willed body case
arising out of the same multidistrict litigation pretrial court, and the Dallas Court of
Appeals in a case involving a different willed body program.  See Noah, 2004 WL
1794642; University of Texas Med. Branch at Galveston v. Harrison, No. 14-02-01276-CV, 2003 WL 21803314 (Tex. App.--Houston [14th Dist.] 2003, pet. denied) (mem. op.);
and Clark v. University of Texas Southwestern Med. Center at Dallas, No. 05-98-01210-CV, 2001 WL 128593 (Tex. App.--Dallas 2001, no pet.) (not designated for publication). (6) 
	The extra-contractual duties upon which the families rely are the duties expressed
in the Restatement of Torts to not mishandle human remains and the statutory duty to
dispose of the remains with respect and dignity.  See Restatement (Second) of Torts
§ 868 (1979); Tex. Health & Safety Code Ann. § 691.022 (Vernon Supp. 2004).
Section 691.022 imposes a duty on the Board to adopt rules.  The adoption of rules does
not involve the use of tangible personal property.  Assuming Section 691.022 creates a
duty, it neither creates a private cause of action for family members, nor contains an 
express statutory waiver of immunity.  See Noah, 2004 WL 1794642, *6.  If the appellee's
conduct would give rise to liability only because that conduct breaches the parties'
agreement, the claim sounds only in contract.  Id. at *5.  All of the appellants allege that
their deceased family members donated his or her body to the Anatomical Board.  Their
claims arise out of failure to perform according to the terms of the willed body forms.  As
was the case in Noah and Harrison, the appellants' claims do not arise from a breach of
any duties owed to the appellants independent of the Board's contractual duties.  The
nature of the contract may be such that mental anguish damages are recoverable, but the
executed will forms are the source of the Board's duties in the handling and disposition of
the bodies of Dorothy Hebert, Peter Gordon Sykes, Pauline Emily Saylor, Larry Barnes,
John T. Gardner, Alfred Soderman, Edna Mae Kennedy, Norma Langianese, Obie Ray
Duncan, Peter G. Lee, Barbara Ann Hunt.  The injuries sound in contract, not in tort. 
	The appellants also argue that the Board waived its immunity from suit on their
contract claims by accepting the bodies.  The State does not waive immunity from suit
simply by contracting with a private party.  Texas Natural Resource Conservation Comm'n
v. IT-Davy, 74 S.W.3d 849, 854 (Tex. 2002).  Furthermore, the Board certainly did not
waive immunity from suit in the contract, as the will forms included in the clerk's records
contain a clause substantially stating the following: "I hereby relinquish all rights and
claims regarding hereon [sic] described body, by any person whatsoever, and direct that
in accepting and using the body for scientific purposes, and disposing of the body, neither
the Anatomical Board of the State nor the receiving institution shall incur any liability, and
no claim shall arise against that institution in any manner." 
	We hold that the trial court did not err in granting the pleas to the jurisdiction filed
by the Anatomical Board of the State of Texas.  Issues one and two are overruled.  The
trial court's orders are affirmed.
	AFFIRMED.

							______________________________
								STEVE MCKEITHEN
								       Chief Justice		


Submitted on September 9, 2004
Opinion Delivered October 21, 2004

Before McKeithen, C.J., Burgess and Gaultney, JJ.
1.   The pretrial judge was appointed before the effective date of the current version
of Rules of Judicial Administration 11, the multidistrict litigation ("MDL") rule.  See Tex.
R. Jud. Admin. 11, reprinted in Tex. Gov't Code Ann., tit. 2, subtit. F app. (Vernon
1998) (amended effective Aug. 31, 2003).  
2.   The Board's pleas to the jurisdiction do not raise lack of a special relationship as
grounds for dismissal.  Instead, the Board argues that the claims alleged in the plaintiffs'
petitions are not cognizable under the Tort Claims Act and that the plaintiffs did not obtain
legislative consent to sue.  The families adopt their responses to UTMB's pleas as their
sole response to the Board's pleas; those responses include the "special relationship"
argument presented in issue one of their brief. 
3.   The pleas to the jurisdiction filed by UTMB in the Jefferson County cases are
consistent with the pleas discussed in Noah.   UTMB argues that it owes no duty to the
families of the donors because its contractual relationship was with the deceased.  
4.   We note that the exercise of discretionary powers is not within the waiver of
immunity provided through the Act.  Tex. Civ. Prac. & Rem. Code Ann. § 101.056(2)
(Vernon 1997). 
5.   In support of their argument that the bodies are personal property used in the
commission of a tort, the appellants refer us to an invoice from UTMB to The Upledger
Institute, Inc., and to UTMB's admission to commingling the plaintiffs' relatives' remains.
The only allegations at issue in this appeal, however, are the assertions of the use of bodies
and crematorium equipment by the Anatomical Board. 
6.   As an unpublished opinion, Clark has no precedential value.  See Tex. R. App.
P. 47.7.  We regard this case as persuasive authority only. 
