Vera Bell ROBINSON, Petitioner, v. CENTRAL TEXAS MHMR CENTER, Respondent, 780 S.W.2d 169

DOGGETT, Justice. This action presents the issue of whether governmental immunity has been waived under

section 101.021 of the Texas Tort Claims Act. Vera Bell Robinson (Petitioner) sued the Central Texas MHMR Center (MHMR) for the death by drowning of her adopted son and biological grandson, Tommy Robinson (Robinson). The trial court rendered judgment against MHMR based on a jury verdict favorable to Petitioner. The court of appeals reversed on the basis of governmental immunity. 758 S.W.2d 394. We reverse the judgment of the court of appeals and remand the cause to that court for consideration of points it did not reach.

In May 1984 employees of MHMR took several patients, including Robinson, to swim at a local lake. These employees were aware that Robinson suffered from epileptic seizures that occasionally caused him to lose consciousness. MHMR was responsible for patients being dressed in appropriate swimming attire. Although life preservers were available and had been previously supplied to another patient, Robinson was not equipped with one, and he subsequently drowned. Petitioner contends that MHMR’s failure to provide a life preserver brings this case within the purview of

section 101.021(2) so that governmental immunity is waived. That

section provides: A governmental unit in the state is liable for: (1) property damage, personal injury, and death proximately caused by the wrongful act or omission or the negligence of an employee acting within his scope of employment if: (

A) the property damage, personal injury, or death arises from the operation or use of a motor-driven vehicle or motor-driven equipment; and (

B) the employee would be personally liable to the claimant according to Texas law; and (2) personal injury and death so 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. Tex.Civ.Prac. & Rem.Code Ann. § 101.021 (Vernon 1986) (emphasis added). MHMR contends that the mere failure to provide a life preserver does not constitute a “condition or use of tangible property” and is thus not actionable under

section 101.-021(2). This waiver provision has, since its inception, been a fertile field for litigation and controversy. Though this problem was made known over thirteen years ago, the legislature has not acted to correct it. In Lowe v. Texas Tech University, 540 S.W.2d 297 (Tex.1976), Chief Justice Greenhill, in a concurring opinion, stated: The purpose of this concurring opinion is to encourage the Legislature to take another look at the Tort Claims Act, and to express more clearly its intent as to when it directs that governmental immunity is waived.

Speaking at least for myself, it is difficult to understand the language of the present statute and to apply it. In any event, the Legislature will be in session in the near future; and it would be very helpful if it would give litigants and the courts guidelines which are easier to follow. 540 S.W.2d at 301, 303. Seven years later, in Salcedo v. El Paso Hospital District, 659 S.W.2d 30, 32 (Tex.1983), this court unanimously noted both the continuing inaction of the legislature to address this “troublesome waiver provision” and the “susceptibil[ity] to broad or narrow

interpretations” of this section. In both Lowe and Salcedo, this court recognized that the Texas Tort Claims Act calls for liberal construction to achieve its purposes. In both cases we interpreted the Act broadly, holding that the plaintiff had stated a claim of injury caused by a condition or use of property within the Act’s waiver provisions. Regrettably, seven legislative sessions have come and gone since Chief Justice Greenhill’s request for clarification in Lowe. Clear and practical guidelines for application of the waiver of governmental immunity contained in

section 101.021(2) should be provided by the legislature. Without such guidelines, litigants, attorneys, and the courts will continue to struggle. We once again call on the legislature to clarify, as soon as possible, the extent to which it intended to waive governmental immunity. We recognize, as the dissent states, that the legislature has no duty “to clarify its enactments to suit this court.” Subsequent to our decision in Lowe, however, the legislature amended the waiver provision to further define the term “state government” and to modify the limitations of liability contained therein.

Acts 1983, ch. 530, § 1, 1983 Tex.Sess.Law Serv. 3084, 3084-85 (Vernon). The language premising waiver on “some condition or some use of tangible property” was unchanged. Id. at 3085. Further, in 1985, the legislature repealed the original Texas Tort Claims Act, Tex.Rev.Civ.Stat.Ann. art. 6252-19 (Vernon 1970), and reenacted it with some language changes and deletions in reorganized form as part of the Texas Civil Practice and Remedies Code. Acts 1985, ch. 959, § 1, 1985 Tex.Sess.Law Serv. 3242, 3303 (Vernon) (codified version); Id., § 9, 1985 Tex.Sess. Law Serv. at 3322 (repeal-er).

The codified version carried forward the waiver of governmental immunity based on “a condition or use” of tangible personal property. Id., § 1, 1985 Tex. Sess.Law Serv. at 3303. The fact that both the amended and codified versions of the waiver provision preserved the “condition or use” language considered by this court in Lowe and Salcedo indicates a legislative adoption of the construction given in those cases. “The rule is well settled that when a statute is re-enacted without material change, it is presumed that the legislature knew and adopted the

interpretation placed on the original act and intended the new enactment to receive the same construction.” Coastal Industrial Water Authority v. Trinity Portland Cement Division, 563 S.W.2d 916, 918 (Tex.1978); accord Wich v. Fleming, 652 S.W.2d 353, 355 (Tex.1983). The dissent recognizes that the statutory waiver provision is both “difficult to understand and difficult to apply.” We agree with that characterization but do not view it, as the dissent does, as an excuse to shirk our duty to interpret and apply the statute.

Rather than trespassing upon the legislative province, our decision today appropriately weighs prolonged legislative silence and implicit acquiescence in precedent of this court. Contrary to the view of the dissent, we are obligated as judges to decide cases in a rational manner on the basis of principles established in prior cases. The dissent offers no convincing reason to distinguish this case from Lowe, and we find none. Accordingly, we decide this case on the basis of our

interpretation set forth in Lowe. In that case, a football player allegedly entered the game with a knee brace, but took it off during the game on the coach’s orders. He was thereafter injured. The court held that Lowe, the football player, stated a cause of action within the purview of the statutory waiver of immunity arising from some condition or some use of tangible property.

The court further stated: So we also hold that Lowe’s allegations of a negligent failure to furnish him proper protective items of personal property, to be used as a part of the uniform furnished him, bring his case within the statutory waiver of immunity arising from some condition or use of personal property. Lowe, 540 S.W.2d at 300. In the case now before us, MHMR employees were responsible for seeing that those for whom they cared were dressed in proper swimming attire. Although life preservers were available, none was provided to Robinson.

A life preserver was just as much a part of Robinson’s swimming attire as the knee brace was part of the uniform in Lowe. In Lowe, we held that a cause of action was stated within the waiver of immunity based on the failure to provide a knee brace. In the instant case, there is an allegation of liability based on the failure to provide a life preserver. Under Lowe, Petitioner should recover. We reverse the judgment of the court of appeals and remand the cause to that court for consideration of the points it did not reach. SPEARS, J., concurs. COOK, J., dissents.

HECHT, J., files a dissenting opinion in which PHILLIPS, C.J., and COOK, J., join. . MHMR’s status as a "governmental unit” as defined under the Texas Tort Claims Act, Tex. Civ.Prac. & Rem.Code Ann. § 101.001(2) (Vernon Supp.1989), is undisputed. . Lowe, 540 S.W.2d at 298; Salcedo, 659 S.W.2d at 32. Prior to codification in the Texas Civil Practice and Remedies Code, the Texas Tort Claims Act provided that its provisions "shall be liberally construed to achieve the purposes hereof.” Tex.Rev.Civ.Stat.Ann. art. 6252-19, § 13 (Vernon 1970) (repealed). The codified version is now subject to

interpretation in accordance with

section 311.023 of the Code Construction Act, Tex.Gov’t Code Ann. (Vernon 1988), to give effect to the "object sought to be attained” by the Act. . As a result of this legislative silence, this court is better analogized to Alice rather than the dissent's philological Humpty Dumpty. In response to Alice’s complaint that she doesn’t understand what Humpty Dumpty means in his impenetrable employment of a particular word, he states: “Of course you don’t — till I tell you.” L. Carroll, Through the Looking-Glass, ch. VI, at 163 (W.W. Norton & Co.1971).

Humpty Dumpty was willing to explain the meaning of his words; the Texas Legislature has not attempted to do so despite repeated requests for definitional assistance. .Legislative inaction following judicial

interpretation has been found by this court to evidence legislative adoption of such

interpretation. Allen Sales and Servicenter, Inc. v. Ryan, 525 S.W.2d 863, 866 (Tex.1975). Cf. Direlco, Inc. v. Bullock, 711 S.W.2d 360, 363-64 (Tex.App. — Austin 1986, writ refd n.r.e.) (inaction following construction by administrative agency). . The quoted language from Lowe cannot be characterized as “essentially dicta,” as the dissent claims. Two questions were presented in that case, and two answered. There is no basis to declare one the holding and the other dicta, or vice-versa. Nor did Salcedo modify or overrule either holding in Lowe. Rather, the Salce-do opinion relies heavily on Lowe as precedent and, consequently, is a reaffirmance of the result there reached.