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Click here for the full text of this decision FACTS:The appellants, National Sports and Spirit Inc., NSG Corp., National Spirit Group Ltd., individually and d/b/a Marching Auxiliaries of America, and Marching Auxiliaries Inc., individually and d/b/a Marching Auxiliaries of America appeal from the trial court’s order granting the University of North Texas’ plea to the jurisdiction. HOLDINGAffirmed. It is well-settled in Texas that for the legislature to waive the state’s sovereign immunity, a statute or resolution must contain a clear and unambiguous expression of the legislature’s waiver of immunity. Univ. of Tex. Med. Branch v. York, 871 S.W.2d 175 (Tex. 1994). In 2001, the legislature ratified this approach by adding �311.034 to the Code Construction Act. It states that “[i]n order to preserve the legislature’s interest in managing state fiscal matters through the appropriations process, a statute shall not be construed as a waiver of sovereign immunity unless the waiver is effected by clear and unambiguous language.” Under Texas Tort Claims Act �101.021(2), a state government unit is liable for “personal injury and death . . . caused by a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law.” Thus, governmental immunity is waived when the following three conditions are met: 1. the cause of action is for personal injury or death; 2. the personal injury or death is caused by a condition or use of tangible personal or real property; 3. and the governmental unit would, if it were a private person, be liable to the claimant under Texas law. Here, the appellants’ pleadings fail to establish the third element of �101.021(2), that the governmental unit would, if it were a private person, be liable to the claimant under Texas law. Appellants argue that they satisfied this element because this is a Chapter 82 products liability cause of action, and UNT, as the manufacturer of the defective product, owes a statutory duty to indemnify appellants, as the seller. UNT, however, contends that immunity is not waived because �82.002(a) does not clearly waive sovereign immunity. Although some statutes leave no doubt about the legislature’s intent to waive immunity, when a statute does not use clear language to confirm its intent, the Texas Supreme Court has employed several factors to determine whether a statute that is less explicit may nevertheless waive the state’s immunity from suit. First, a statute that waives immunity must do so beyond doubt, even though it does not have to be a model of perfect clarity. Second, when construing a statute that purportedly waives sovereign immunity, any ambiguity should generally be resolved by retaining immunity. Third, if the legislature requires that the state be joined in a lawsuit for which immunity would otherwise attach, the legislature has intentionally waived sovereign immunity. Finally, the court has recognized that when waiving immunity by explicit language, the legislature often enacts simultaneous measures to insulate public resources from the reach of judgment creditors. Texas Civil Practice and Remedies Code �82.002 does not contain the sort of language that the legislature generally uses to confirm its intent to waive immunity from suit. Thus, with the above principles in mind, the court examines the statutory language of Chapter 82 to determine whether the legislature implicitly waived immunity. The statute does not require that the state be joined in a suit for which immunity would otherwise attach, which implies that waiver does not apply. The statute also does not include a simultaneous provision to insulate the limitation on the state’s potential liability. Under the statute, a manufacturer must indemnify a seller against “loss,” which includes court costs and other reasonable expenses, reasonable attorneys’ fees, and other reasonable damages. Texas Civil Practice and Remedies Code �82.002(b). Even though the statute requires the indemnity for “reasonable” expenses, fees and damages, it still possibly subjects the state to indeterminate damage awards. This weighs against waiver of immunity. Finally, although the courts do not require a statute to use “magic words” to establish waiver of immunity, the statute must still waive immunity beyond doubt. The court concludes that the legislature did not intend waiver of immunity under �82.002. Therefore, the appellants may not use a statute that does not waive immunity to then try and prove waiver under the third element of the TTCA. To allow otherwise would mean that any plaintiff who had a cause of action under any statute where a private person would be liable could then show waiver under the third element of the TTCA. The court does not believe that the intention of the TTCA is to be so broadly construed. The Supreme Court has cautioned, however, against an expansive reading of the waiver that would cause the exception to lose its limited character. Dallas County MHMR v. Bossley, 968 S.W.2d 339 (Tex.), cert. denied, 525 U.S. 1017 (1998). The court’s holding does not result in waiver becoming absolute because appellants had other theories that they could have used to bring their claim under the TTCA. OPINION:Livingston, J.; Day, Livingston and Holman, JJ.

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