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]