                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                              F I L E D
                       In the                                 August 25, 2005

United States Court of AppealsCharles R. Fulbruge III
                                                                   Clerk
          for the Fifth Circuit
                  _______________

                    m 02-11168
                  Summary Calendar
                  _______________




             JULIE DUNLOP ESPINOZA,

                                       Plaintiff-Appellee,

                       VERSUS

  TEXAS DEPARTMENT OF PUBLIC SAFETY; ET AL.,

                                       Defendants,

     TEXAS DEPARTMENT OF PUBLIC SAFETY,

                                       Defendant-Appellant.




          _________________________

      Appeal from the United States District Court
          for the Northern District of Texas
                 m 3:00-CV-1975-L
           _________________________
Before DAVIS, SMITH, and DENNIS,                             its immunity from suit under § 504 of the Re-
  Circuit Judges.                                            habilitation Act by accepting federal funds pur-
                                                             suant to 42 U.S.C. 2000d-7, the district court
PER CURIAM:*                                                 denied the motion to dismiss, and TDPS took
                                                             this interlocutory appeal.
   Julie Espinoza sued the Texas Department
of Public Safety (“TDPS”) for alleged viola-                    During the pendency of this appeal, we de-
tions of title II of the Americans with Disabili-            cided Pace v. Bogalusa City Sch. Bd., 403
ties Act (“ADA”), 42 U.S.C. § 12132, and                     F.3d 272 (5th Cir. 2005) (en banc), which, as
§ 504 of the Rehabilitation Act of 1973, 29                  TDPS has appropriately acknowledged in sup-
U.S.C. § 794(a). Based on intervening deci-                  plemental briefing, forecloses all but two of its
sions from the Supreme Court and this court,1                arguments for reversing the denial of sovereign
Espinoza conceded that her ADA claim was                     immunity: (1) that despite accepting federal
barred by sovereign immunity2 but maintained                 funds conditioned on a waiver of immunity, it
that her § 504 Rehabilitation Act claim for in-              does not have authority, as a matter of state
junctive relief was not.                                     law, t o waive immunity from suit in federal
                                                             court; and (2) that §§ 504 and 2000d-7 fail the
   TDPS moved the district court to dismiss                  relatedness requirement set forth in South
the § 504 claim on the basis of state sovereign              Dakota v. Dole, 483 U.S. 203 (1987).
immunity. Concluding that TDPS had waived                    Although not addressed in Pace, those conten-
                                                             tions are now foreclosed by in Miller v. Tex.
                                                             Tech Univ. Health Scis. Ctr., 2005 U.S. App.
   *
    Pursuant to 5TH CIR. R. 47.5, the court has de-          LEXIS 17244 (5th Cir. Aug. 15, 2005) (en
termined that this opinion should not be published           banc).
and is not precedent except under the limited cir-
cumstances set forth in 5TH CIR. R. 47.5.4.
                                                                Therefore, based on these precedents, we
   1
      See Board of Trustees of Univ. of Ala. v. Gar-         AFFIRM the denial of TDPS’s motion to dis-
rett, 531 U.S. 356 (2001) (holding that title I of the       miss on the basis of state sovereign immunity,
ADA did not validly abrogate state sovereign                 and we REMAND this matter for further pro-
immunity pursuant to Section Five of the Four-               ceedings.
teenth Amendment); Reickenbacker v. Foster, 274
F.3d 974 (5th Cir. 2001) (holding that title II of the
ADA and § 504 the Rehabilitation Act, which offer
protections almost identical to those of the ADA,
did not validly abrogate state sovereign immunity
pursuant to Section Five of the Fourteenth
Amendment).
   2
      Thereafter, on leave from the district court,
Espinoza amended her complaint to assert an ADA
claim against the director of the TDPS in his
official capacity under Ex Parte Young, 209 U.S.
123 (1908), for which she sought prospective in-
junctive relief and attorney’s fees. No challenge to
this claim is presently before us.

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