                     NO. 07-03-0438-CV
                         07-03-0439-CV

                 IN THE COURT OF APPEALS

            FOR THE SEVENTH DISTRICT OF TEXAS

                       AT AMARILLO

                         PANEL A

                       JUNE 30, 2005

              ______________________________

   TIM KENNEDY, INDIVIDUALLY AND AS THE REPRESENTATIVE
  OF THE ESTATE OF EDNA MAE KENNEDY, ET AL., APPELLANTS

                            V.

UNIVERSITY OF TEXAS MEDICAL BRANCH AT GALVESTON, APPELLEE
              _________________________________

   FROM THE 136TH DISTRICT COURT OF JEFFERSON COUNTY;

     NO. D-0168353; HONORABLE MILTON SHUFFIELD, JUDGE
               _______________________________

                           and
             ________________________________


  CATHY TAYLOR, INDIVIDUALLY AND AS THE REPRESENTATIVE
   OF THE ESTATE OF DOROTHY HEBERT, ET AL., APPELLANTS

                            V.

UNIVERSITY OF TEXAS MEDICAL BRANCH AT GALVESTON, APPELLEE
             __________________________________

   FROM THE 172ND DISTRICT COURT OF JEFFERSON COUNTY;
       NO. E0168256; HONORABLE DONALD FLOYD, JUDGE
            __________________________________
Before REAVIS and CAMPBELL, JJ.1

                                  MEMORANDUM OPINION

       These companion cases present another of the appeals challenging the dismissal

of claims arising from the operation of the willed body program at the University of Texas

Medical Branch at Galveston (UTMB) on a plea to the jurisdiction filed by a governmental

entity. We will affirm the trial court’s dismissal of claims against UTMB.


       The two groups of plaintiffs, appellants here,2 filed separate suits against UTMB,

three of its employees and other entities for mental anguish damages they claim resulted

from UTMB’s operation of its willed body program. Appellants alleged UTMB failed to

return cremation remains of relatives whose bodies had been donated to the program for

the advancement of medical science.3 They also alleged a UTMB employee illegally sold

bodies and body parts for profit.4 Appellants asserted claims against UTMB based on

negligence, negligent supervision, negligent entrustment, negligence per se, breach of

contract, constructive fraud and vicarious liability.


       UTMB filed pleas to the jurisdiction in each suit arguing, among other contentions,

that appellants failed to allege viable causes of action against it, and failed to allege facts

       1
        Former Chief Justice Phil Johnson was on the panel that heard oral argument. He
did not participate in the decision. Tex. R. App. P. 41.1(b).
       2
       Appellants are the same parties listed in the opinion in Taylor v. Anatomical Board
of Texas, 148 S.W.3d 661, 662-63 (Tex.App.–Beaumont 2004, pet. denied).
       3
       The bodies were provided in conformity with the Texas Anatomical Gift Act. See
Tex. Health & Safety Code Chapter 692 (Vernon 2003 & Supp. 2004).
       4
           The petitions did not allege the sale of any specific body.

                                                2
supporting a waiver of governmental immunity. The trial court granted UTMB’s pleas in

both cases, without stating the specific basis for its rulings. The orders also severed the

claims against UTMB in each case, creating the final appealable orders now before us.


        Appellants have filed a single brief in support of both appeals. In it they present two

issues: (1) whether they adequately alleged a special relationship5 to establish standing

to recover mental anguish damages against UTMB; and (2) whether their pleadings

properly alleged injuries caused by the use of tangible personal property, bringing their

claims within the waiver of immunity under Section 101.021(2) of the Texas Tort Claims

Act.6


        Appellants presented the same issues in their appeals of the trial court’s grant of the

pleas to the jurisdiction filed by another defendant in the same cases, the Anatomical Board

of Texas, which was affirmed in Taylor, 148 S.W.3d 661. In that opinion, the Beaumont

court expressed agreement with the Anatomical Board’s contention that the plaintiffs’

claims founded on an asserted special relationship authorizing recovery of damages for

mental anguish were based on contract, not tort law. Id. at 665. The First and Fourteenth

Courts of Appeals reached the same conclusion in related cases. See Noah v. University

of Texas Medical Branch at Galveston, No. 01-03-0985-CV, 2004 WL 1794642

(Tex.App.–Houston [1st Dist.] Aug. 12, 2004, pet. denied) (not yet reported); University of



        5
        See City of Tyler v. Likes, 962 S.W.2d 489, 496 (Tex. 1997) (mental anguish
compensable as the foreseeable result of a breach of duty arising out of certain special
relationships).
        6
            Tex. Civ. Prac. & Rem. Code Ann. § 101.021(2) (Vernon 2005).

                                               3
Texas Medical Branch at Galveston v. Harrison, No. 14-02-1276-CV, 2003 WL 21803314

(Tex.App.–Houston [14th Dist.] 2003, pet. denied) (mem. op.). We will follow those courts’

lead here. Because the donation agreements7 by which the decedents or family members

authorized donation of the decedents’ bodies spell out UTMB’s obligations for the return

of the cremation remains, see DeWitt County Elec. Co-op v. Parks, 1 S.W.3d 96, 105 (Tex.

1999), and for the further reasons discussed in Noah at 5, we find that appellants’ special

relationship claims sound in contract.


       Appellants argue that the duties concerning handling of willed bodies imposed by

provisions of the Health and Safety Code and the Administrative Code8 give rise to a legally

cognizable special relationship between them and UTMB. The court rejected those

contentions in Noah, and we also conclude that the statutory and administrative provisions

cited do not form a basis for UTMB’s liability to appellants independent of their relationship

under the donation agreements. See Noah, at 6.


       By contracting with a private party, a governmental unit waives immunity from liability

under the contract but not immunity from suit. It waives immunity from suit only through

express consent. See Catalina Dev., Inc. v. County of El Paso, 121 S.W.3d 704, 705 (Tex.

2003); Federal Sign v. Texas Southern Univ., 951 S.W.2d 401, 408                (Tex. 1997).

Appellants have not shown the existence of the required express consent for suit against



       7
           Referred to in Taylor as the “willed body forms.” 148 S.W.3d at 665.
       8
        Appellants cite Tex. Health & Safety Code Ann. § 691.022 (Vernon Supp. 2004),
and regulations of the Anatomical Board, 25 Tex. Admin. Code §§ 477.4, 479.4 and 479.5
(2003).

                                              4
UTMB based on breach of contract.9 Appellants contend that, even if their claims against

UTMB are based in contract, the medical school waived its immunity from suit by accepting

the donated bodies and making use of them then breaching its agreement to return the

cremated remains. See Catalina, 121 S.W.3d 705-06; Federal Sign, 951 S.W.2d at 408

n.1. On this point also we will follow the Harrison and Noah opinions, and decline to find

that UTMB’s conduct served to waive its immunity. Noah, at 7; Harrison, at 2. See also

Taylor, 148 S.W.3d at 665. Accordingly, the trial court did not err in its grant of UTMB’s plea

to the jurisdiction.


       Appellants’ first issue is overruled, and our disposition of it makes consideration of

their second issue unnecessary.       We affirm the orders of the trial court dismissing

appellants’ claims against UTMB.


                                                   James T. Campbell
                                                        Justice




       9
       The provisions of Chapter 2260 of the Government Code have no application here
because appellants’ claims are for personal injury. See Tex. Gov’t Code Ann. § 2260.002
(Vernon 2000).

                                              5
