                                    NO. 07-03-0174-CV

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                         PANEL A

                                       MAY 14, 2004

                          ______________________________


                     LUBBOCK REGIONAL MENTAL HEALTH AND
                    MENTAL RETARDATION CENTER, APPELLANT

                                             V.

                     PATTY MCMENAMY, INDIVIDUALLY AND AS
                      THE NEXT FRIEND OF JEFF MCMENAMY,
                        NON-COMPOS MENTIS, APPELLEE

                        _________________________________

             FROM THE 99TH DISTRICT COURT OF LUBBOCK COUNTY;

          NO. 2002-518,541; HONORABLE BILLY JOHN EDWARDS, JUDGE
                       _______________________________

Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.


                                MEMORANDUM OPINION


       Lubbock Regional Mental Health and Mental Retardation Center (MHMR) appeals

from a partial denial of its plea to the jurisdiction. We reverse.


       Patty McMenamy (McMenamy), individually and as next friend of Jeff McMenamy,

filed suit against MHMR alleging ordinary negligence and a violation of the Patient’s Bill of
Rights, TEX . HEALTH & SAFETY CODE ANN . §§ 321.001-.004 (Vernon 2001),1 for injuries that

Jeff suffered while attending a program offered by appellant.


       MHMR filed a Plea to the Jurisdiction urging that McMenamy’s claims were barred

by sovereign immunity.2 As relevant to this appeal, MHMR contended that the Patient’s Bill

of Rights does not expressly or impliedly waive sovereign immunity.3


       The trial court granted MHMR’s plea in regard to the ordinary negligence claim,

resulting in the dismissal of the claim for want of jurisdiction, but denied MHMR’s plea in

regard to the Patient’s Bill of Rights claim. MHMR appealed the failure of the trial court to

dismiss the Patient Bill of Rights claim. See TEX . CIV . PRAC . & REM . CODE ANN . §

51.014(a)(8) (Vernon Supp. 2003).4




       1
       Further references to Texas Health and Safety Code provisions will be by reference
to “TH&SC §___.”
       2
      See Federal Sign v. Tex. S. Univ., 951 S.W.2d 401, 405 (Tex. 1997); Lowe v. Tex.
Tech Univ., 540 S.W.2d 297, 298 (Tex. 1976).
       3
        McMenamy did not contest MHMR’s proof of its status as a community center
organized under provisions of the Texas Mental Health/Mental Retardation Act of 1965, see
TEX . REV . CIV . STAT. ANN . art. 5547-201 through 204, codified as TH&SC ch. 534, and its
entitlement to sovereign immunity, absent a waiver of that immunity. See TH&SC §
534.001(c)(1); Dallas County Mental Health and Mental Retardation v. Bossley, 968 S.W.2d
339 (Tex. 1998).
       4
        On July 10, 2003, McMenamy filed notice of appeal challenging the trial court’s
dismissal of her ordinary negligence claim for lack of jurisdiction. The trial court’s order was
dated March 31, 2003. McMenamy’s notice of appeal was not timely filed. See TEX . R.
APP . P. 26.1(b), (d) and 28. McMenamy did not file a brief in support of her attempted
appeal of the trial court’s dismissal of her ordinary negligence claim. We dismiss
McMenamy’s appeal. TEX . R. APP . P. 25.1(b) and 38.8(a)(1).

                                              -2-
        The Texas Supreme Court has now determined that there is neither an express nor

implied waiver of sovereign immunity in the Patient’s Bill of Rights and, therefore, state

mental health facilities such as MHMR are immune from suit for violations of TH&SC §

321.001-.004. See Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692 (Tex. 2003).


       Because sovereign immunity protects MHMR from suit for violations of the Patient’s

Bill of Rights provisions, the trial court did not have subject matter jurisdiction over

McMenamy’s Patient’s Bill of Rights claim. We reverse that part of the trial court’s order

denying MHMR’s plea to the jurisdiction, render judgment dismissing McMenamy’s

Patient’s Bill of Rights claim for want of jurisdiction, and remand to the trial court for further

proceedings.



                                             Phil Johnson
                                             Chief Justice




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