

                                                             11th
Court of Appeals
                                                                  Eastland,
Texas
                                                             Memorandum
Opinion
 
Texas Department of Mental Health and 
Mental Retardation and Abilene State School
 
Appellants
Vs.                   No.
11-01-00258-CV B Appeal from Taylor County
Ethel White Kelley, Individually, and 
Richard D. Kelley, on Behalf of the
Estate of Anita Gay Kelley
 
Appellees
 
The sole
issue in this case is whether TEX. HEALTH & SAFETY CODE ANN. ' 321.003 (Vernon 2001) evidences the
legislature=s intent to clearly and unambiguously waive
the State=s sovereign immunity from suit.
Ethel
White Kelley, individually, and Richard D. Kelley, on behalf of the Estate of
Anita Gay Kelley, sued the Texas Department of Mental Health and Mental
Retardation and Abilene State School for violations of the APatient=s Bill of Rights@ which were recognized and adopted under the provisions of TEX. HEALTH
& SAFETY CODE ANN. ch. 321 (Vernon 2001).
Anita Gay
Kelley, a mentally-retarded person who resided in a Acottage@ at the Abilene State School, was found dead in her bathtub.  Appellees alleged that appellants guaranteed
to Anita Gay Kelley certain rights, including freedom from mistreatment, abuse,
neglect, and exploitation and that appellants failed to insure and secure the
rights guaranteed resulting in damages to appellees.
Appellants
filed a plea to the jurisdiction, asserting sovereign immunity.  The Abilene State School and the Texas
Department of Mental Health and Mental Retardation are state agencies entitled
to assert sovereign immunity from suit. 
See TEX. HEALTH & SAFETY CODE ANN. & 532.001(a) & (b)(9)
(Vernon Pamph. Supp. 2003).  The trial
court denied the plea, and appellants appealed.




We delayed
our decision in this case because the same controlling issue was before the
Texas Supreme Court.  On March 6, 2003,
the court in Wichita Falls State Hospital v. Taylor, 46 Tex. Sup. Ct. J. 494
(March 6, 2003), held that Section 321.003 of the Texas Health & Safety
Code does not waive the State=s sovereign immunity from suit. 
The holding in Taylor is dispositive in the present case.  
We reverse
the trial court=s judgment denying appellants= plea to the jurisdiction and dismiss
appellees= claims for want of jurisdiction.
 
PER
CURIAM
 
March 20, 2003
Panel consists of: Wright, J., and
McCall, J., and McCloud, S.J.[1]




[1]Austin McCloud, Retired Chief Justice, Court of
Appeals, 11th District of Texas at Eastland sitting by assignment.


