                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                                                              March 30, 2005
                        FOR THE FIFTH CIRCUIT
                                                          Charles R. Fulbruge III
                     __________________________                   Clerk

                            No. 02-20816
                     __________________________


DANNY R, by next of friend
Ilan R.; ILAN R., Guardian,

                                                Plaintiffs-Appellees,

versus


SPRING BRANCH INDEPENDENT SCHOOL
DISTRICT; ET AL,
                                                           Defendants,

THE TEXAS EDUCATION AGENCY,

                                                Defendant-Appellant.

         ___________________________________________________

             Appeal from the United States District Court
              for the Southern District of Texas, Houston
                             (H-02-CV-480)
         ___________________________________________________

Before JOLLY, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

     Defendant-Appellant The Texas Education Agency (“TEA”) filed

a motion to dismiss, on grounds of Eleventh Amendment sovereign

immunity, a claim of Plaintiffs-Appellees Danny R, by next of

friend Ilan R., and Ilan R., Guardian (collectively, “Appellees”),



     *
        Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
grounded in § 504 of the Rehabilitation Act.1           The district court

denied TEA’s motion to dismiss, concluding that, in accepting

federal educational funds made available by Congress under its

Spending Clause powers, TEA waived any right it might have had to

urge immunity under the Eleventh Amendment.2

     We held TEA’s appeal in abeyance pending our resolution of

this precise issue in Pace v. Bogalusa City School Board et al.3

In our recent en banc disposition of Pace, we held that Eleventh

Amendment    sovereign   immunity    to   claims     under   §   504   of   the

Rehabilitation Act is waived by any state or state agency that

accepts    federal   funds   made   available   by    Congress    under     the

authority of the Spending Clause of the United States Constitution

and clearly and expressly conditioned on waiver of immunity.

     This holding in Pace controls our disposition of TEA’s appeal

of the district court’s order denying dismissal of Appellees’

Rehabilitation Act claim.      That ruling is therefore affirmed, and

the case is remanded for further consistent proceedings.

AFFIRMED and REMANDED.




     1
         29 U.S.C. § 794.
     2
       The district court also denied TEA’s motion to dismiss
Appellees’ claim under the Individuals with Disabilities Education
Act (“IDEA”), but the only order appealed from by TEA is the one
denying dismissal of the Rehabilitation Act claim; so we do not
address the district court’s unappealed denial of TEA’s motion to
dismiss Appellees’ IDEA claim.
     3
         2005 WL 546507 (5th Cir. 2005)(en banc).

                                     2
3
