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Click here for the full text of this decision FACTS:The court considers these accelerated appeals together because they present identical governmental immunity issues regarding the alleged mishandling of willed bodies and remains. In each case, the plaintiffs contend that the trial court erred in granting University of Texas Medical Branch at Galveston’s pleas to the jurisdiction because the plaintiffs had adequately alleged 1. that UTMB breached a “special relationship” with them, such as to permit them to seek mental anguish damages against UTMB or, alternatively, that they are entitled to seek recovery for such damages notwithstanding the existence of a special relationship and 2. that UTMB caused their injuries by the use of “tangible personal property,” such that UTMB’s governmental immunity was waived, pursuant to the provisions of the Tort Claims Act. HOLDING:Affirmed. The causes of action asserted by the plaintiffs against UTMB all originate from 1. the plaintiffs’ special relationships with UTMB, which were formed as a result of their contractual agreements to donate the bodies of the plaintiffs’ relatives; and 2. UTMB’s alleged breach of its duties owed to the plaintiffs under this contractual special relationship. With certain limitations, the plaintiffs transferred the “right of control” of the remains of their relatives — the basis for a potential tort cause of action under 868 of the Restatement (Second) of Torts — to UTMB by the terms of the parties’ contractual agreements. In the absence of these contractual arrangements, no special relationship would have existed between the parties. Thus, the source of the duties allegedly breached by UTMB was the parties’ contractual agreements, not 868. Moreover, the plaintiffs have not directed this court to any Texas case adopting 868as the basis for a tort cause of action for breach of a special relationship. Rather, as noted above, Texas courts have treated such special relationship claims, generally, as sounding in contract. because the special relationship claims presented by the plaintiffs in this case do not arise from a breach of any duties owed to the plaintiffs by UTMB independent of its contractual duties, the plaintiffs’ special relationship claims sound in contract, not tort. To bring a suit against a governmental unit for breach of contract, a party must generally obtain express consent to sue. The plaintiffs assert that, because their claims for personal injuries do not fall within the types of claims requiring compliance with the administrative process established by Texas Government Code Chapter 2260, “UTMB’s claimed immunity [from suit] is unavailing.” However, the fact that Chapter 2260 does not apply to the plaintiffs’ claims does not mean that UTMB has waived its governmental immunity from suit. Rather, the plaintiffs must still establish the existence of consent to sue UTMB. Because the record indicates that the plaintiffs did not establish the existence of legislative consent to sue UTMB for their special relationship claims, which arose from a breach of contract, the court holds that UTMB is immune from suit on such claims and that the trial court did not have subject matter jurisdiction over those claims. The plaintiffs alternatively argue that, independently of its contractual duties, UTMB breached certain statutory duties created by the provisions of the Administrative Code and the Health and Safety Code concerning the handling and disposal of the remains of willed bodies and prohibiting the sale or transfer of bodies or body parts out of state. The court holds that the plaintiffs have not shown that the provisions of the Administrative Code and the Health and Safety Code contain an express statutory waiver of UTMB’s governmental immunity from the plaintiffs’ suit for the recovery of mental anguish damages. The plaintiffs further argue that UTMB’s conduct in allegedly breaching its contractual duties constitutes an equitable basis for this Court to hold that UTMB waived its governmental immunity from suit. Although the Texas Supreme Court has suggested that certain circumstances “might warrant recognizing a waiver by conduct,” the court has, so far, not recognized such a waiver when a governmental unit simply breaches its contractual duties. OPINION:Jennings, J.; Taft, Jennings and Hanks, JJ.

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