                       REVISED OCTOBER 8, 2002

              IN THE UNITED STATES COURT OF APPEALS
                      FOR THE FIFTH CIRCUIT



                             No. 01-50591


     DANIEL M PEREZ

                           Plaintiff - Appellant

     v.

     REGION 20 EDUCATION SERVICE CENTER

                           Defendant - Appellee


           Appeal from the United States District Court
          for the Western District of Texas, San Antonio


                          September 20, 2002


Before KING, Chief Judge, and SMITH and PARKER, Circuit Judges.

KING, Chief Judge:

     Plaintiff-Appellant Daniel M. Perez ("Perez") filed suit

against Defendant-Appellee Region 20 Education Service Center

("Region 20") for alleged violations of Title VII of the Civil
Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e-2 (2000), the

Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12112

(2000), and the Texas Whistleblower Act, TEX. GOV’T CODE ANN.

§ 554.002 (Vernon 1994 & Supp. 2002).       The district court granted

summary judgment in favor of Region 20 and Perez appeals.       We

AFFIRM.

                I.    FACTUAL AND PROCEDURAL HISTORY

     On October 22, 1990, Perez began working for Region 20 as a
                           No. 01-50591
                                -2-

Data Processing Specialist.   Region 20 is one of several

Education Service Centers ("Centers") charged with administering

statewide educational programs and supporting local school

districts.   In 1991, Perez was promoted to the position of Senior

Analyst Specialist II in the Regional Service Center Computer

Cooperative ("RSCCC") systems group.

     Perez wished to become a Database Administrator for the

RSCCC group.   Unlike other computer groups at Region 20, the

RSCCC group did not have a Database Administrator position.

Perez began taking on some database administration duties.    These

duties were not part of Perez's job description, but employees at

Region 20 often took on duties outside of their job descriptions.

Perez submitted a request to Region 20 asking to be promoted to,

or reclassified as, a Database Administrator because it was a

higher-level position than Senior Analyst Specialist II.    Perez's

request was not granted because there was no Database

Administrator position available in the RSCCC group, but Perez

was told that if the position was ever approved and funded for

his group, he would get the position.

     In June 1998, Perez filed a complaint with the Equal

Employment Opportunity Commission ("EEOC"), claiming that Region

20 discriminated against him on the basis of national origin in

failing to promote or reclassify him.

     In late 1997, Perez began experiencing stress and

depression; by January 1998, though, Perez received a clean bill

of health.   In June 1998, Perez was treated for stomach problems

and work-related stress.   Perez then told Region 20 that he was
                           No. 01-50591
                                -3-

having medical problems and submitted certification of anxiety,

depressive disorder, dysthemia, and stress.    Perez's therapist

noted that his condition was not chronic or incapacitating but

nonetheless recommended that Perez's work schedule be limited to

37.5 hours per week.   Region 20 limited Perez's work schedule

until April 1999, when Perez's doctor released him to work

overtime under certain conditions.

     Though Perez had previously received positive performance

reviews, Perez's annual performance review in August 1998

contained several negative comments.     In March 1999, Perez

received a memo from a supervisor stating that his performance

was substandard and warning of possible consequences.    In June

1999, Perez received two further memos documenting problems with

his work performance and hours.   Perez was discharged on July 1,

1999.

     Perez responded to his discharge by filing several

complaints against Region 20.   Region 20 does not have a formal

procedure for an employee to appeal his termination, but it

allowed Perez to file a grievance.   The grievance committee ruled

against Perez.   Perez also filed a grievance with the

Commissioner of Education; that grievance was ultimately

dismissed due to lack of jurisdiction.    In July 1999, Perez filed

a second EEOC complaint, alleging that: (1) Region 20 discharged

him due to his Hispanic national origin; (2) Region 20

discriminated against him because of his mental illness

disability in violation of the ADA; and (3) Region 20 discharged

him in retaliation for filing a previous EEOC complaint.    The
                              No. 01-50591
                                   -4-

EEOC denied Perez's charges of discrimination and retaliation and

informed Perez of his right to sue Region 20.

     Perez filed suit in Texas state court, alleging that Region

20 violated Title VII, the ADA, and Texas state law.

Specifically, Perez al

leged: (1) Region 20 discriminated against him on account of his

Hispanic national origin, in violation of Title VII, when it

failed to grant his request to reclassify his position or promote

him; (2) Region 20 discharged him in retaliation for filing his

charge of discrimination with the EEOC in violation of Title VII;

(3) Region 20 discharged him because of his Hispanic national

origin in violation of Title VII; (4) Region 20 discriminated

against him due to his mental illness disability in violation of

the ADA; and (5) Region 20 discharged him in retaliation for

reporting the sexual harassment of another Region 20 employee in

violation of the Texas Whistleblower Act.     Region 20 removed the

lawsuit to federal district court.

     The district court granted summary judgment for Region 20 on

all claims.   Perez appealed.

                      II.    STANDARD OF REVIEW

     This court reviews a grant of summary judgment de novo,

applying the same standards as the district court.      Daniels v.

City of Arlington, 246 F.3d 500, 502 (5th Cir.), cert. denied,

122 S. Ct. 347 (2001).      Summary judgment should be granted if

there is no genuine issue of material fact for trial and the

moving party is entitled to judgment as a matter of law.      FED. R.

CIV. P. 56(c).   In determining if there is a genuine issue of
                             No. 01-50591
                                  -5-

material fact, the court reviews the evidence in the light most

favorable to the non-moving party.     Daniels, 246 F.3d at 502.

     A genuine issue of material fact exists when there is

evidence sufficient for a rational trier of fact to find for the

non-moving party.     Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. 574, 586-87 (1986).     When the non-moving party

bears the burden of proof on a claim, the moving party may obtain

summary judgment without providing evidence that negates the non-

moving party's claim.     See Celotex Corp. v. Catrett, 477 U.S.

317, 322-25 (1986).    Rather, the moving party need only highlight

the absence of evidence in support of the non-moving party's

claim.   See id.

                           III.   DISCUSSION

     Perez raises five issues on appeal.       He argues that: (1)

Region 20 failed to promote or reclassify him on the basis of his

Hispanic national origin in violation of Title VII; (2) Region 20

discharged him in retaliation for making an EEOC complaint in

violation of Title VII; (3) Region 20 discharged him on account

of his Hispanic national origin in violation of Title VII; (4)

Region 20 discriminated against him due to his mental illness

disability in violation of the ADA; and (5) Region 20 discharged

him in retaliation for reporting sexual harassment in violation

of the Texas Whistleblower Act.     We consider each claim in turn.

A.       Title VII Failure to Promote Claim

     Perez first contends that Region 20's failure to promote him

to the position of Database Administrator violates Title VII's

prohibition of discrimination in employment on the basis of
                             No. 01-50591
                                  -6-

national origin.     See 42 U.S.C. § 2000e-2(a) (2000).    To make out

a prima facie case of discrimination based on failure to promote,

Perez must show that: (1) he belongs to a protected class; (2) he

was qualified for the job he sought; (3) despite his

qualifications, Perez was rejected; and (4) after his rejection,

the position remained open and Region 20 continued to seek

applicants from persons of Perez's qualifications.        McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); Bennett v.

Total Minatome Corp., 138 F.3d 1053, 1060 (5th Cir. 1998).         If

Perez establishes a prima facie case, the burden shifts to Region

20 to articulate a legitimate, non-discriminatory reason for

Perez's rejection.     See Reeves v. Sanderson Plumbing Prods.,

Inc., 530 U.S. 133, 142 (2000); McDonnell Douglas Corp., 411 U.S.

at 802.   If Region 20 articulates a non-discriminatory reason,

Perez must then show that Region 20 did intentionally

discriminate, which he may do by demonstrating that Region 20's

proffered reason is simply a pretext for discrimination.        See

Reeves, 530 U.S. at 143, 146-48.

     The district court found that Perez had made out his prima

facie case, but that Region 20 had articulated a legitimate, non-

discriminatory reason for its failure to promote Perez.       We

bypass the serious question whether Perez even met his prima

facie burden and address Region 20's articulated reasons for its

failure to promote or reclassify Perez.

     Region 20 argues, and presented summary judgment evidence to

the effect that, it did not promote Perez or reclassify his

position because the position of Database Administrator within
                            No. 01-50591
                                 -7-

the RSCCC group was never approved for funding and, therefore,

the position did not exist.    The district court found this to be

a legitimate, non-discriminatory reason for the failure to

promote Perez and found that Perez had failed to present

sufficient evidence to suggest that Region 20's stated reason was

false.    Perez notes only that another software group at Region 20

did contain a Database Administrator position and that other

employees (two Anglo males, one Hispanic woman, one African-

American male, and one Asian-American woman) were reclassified.

Neither fact, nor the argument that underlies them, addresses the

inescapable fact that, as Perez admits in his brief, “[a]t the

time [he] began requesting the promotion/reclassification, his

funded software area (RSCCC group) did not have the position of

Database Administrator.”    The nonexistence of an available

position is a legitimate reason not to promote.    See Int’l Bhd.

of Teamsters v. United States, 431 U.S. 324, 358 n.44 (1977)

(finding that the “absence of a vacancy in the job sought” is a

legitimate reason for not hiring a person for a position).     As

Perez produced no evidence to disprove this legitimate non-

discriminatory justification for Region 20's failure to promote

or reclassify him, the district court correctly granted summary

judgment on Perez’s Title VII failure to promote claim.

B.   Title VII Discharge Claims

     Perez next makes two Title VII claims related to his

discharge.    First, he argues that he was discharged in

retaliation for filing his complaint of discrimination with the

EEOC.    Second, he contends that he was discharged on account of
                            No. 01-50591
                                 -8-

his Hispanic national origin.

     Title VII prohibits retaliation against employees who engage

in protected conduct, such as filing a complaint of

discrimination.   See 42 U.S.C. § 2000e-3(a) (2000).    To make out

a prima facie case of retaliation, Perez must show: (1) he

engaged in a protected activity; (2) he suffered an adverse

employment action; and (3) a causal nexus exists between the

protected activity and the adverse employment action.        Gee v.

Principi, 289 F.3d 342, 345 (5th Cir. 2002).   Once this prima

facie burden is met, retaliation claims utilize the same burden-

shifting approach as do failure to promote claims.     Id.

     Both parties agree that Perez satisfied the first two

elements of a prima facie case by providing evidence that Perez

filed a complaint with the EEOC (a protected activity) and that

he was terminated on July 1, 1999 (an adverse employment action).

Region 20 disputes that Perez provided sufficient evidence of the

third element, causation.   The district court found that Perez

provided sufficient evidence of a causal connection.    It

recognized that timing can constitute evidence of a causal

connection between a protected activity and termination and

looked to see whether Region 20 had articulated a legitimate,

non-discriminatory reason for the termination.   The court then

found that the reason proffered by Region 20, poor work

performance, was adequate to shift the burden back to Perez to

disprove the proffered reason.

     We again assume that Perez made out his prima facie case.

Perez's claim nonetheless fails because he has not provided
                            No. 01-50591
                                 -9-

evidence to refute Region 20's proffered explanation for his

discharge.   Perez points to the failure by Region 20 to meet with

him to set performance goals as evidence of pretext.     Such a

failure may be a management lapse, but it does not amount to

evidence of retaliation.    See Mayberry v. Vought Aircraft Co., 55

F.3d 1086, 1091 (5th Cir. 1995) ("The question is not whether an

employer made an erroneous decision; it is whether the decision

was made with discriminatory motive.").     Perez also suggests that

the fact that he received a low performance review within months

of his complaint shows pretext.    The negative August 1998

performance review, however, is substantiated by other evidence

in the summary judgment record; Perez provides no evidence that

challenges the accuracy of his performance review.     Merely

disagreeing with an employer's negative performance assessment is

insufficient to show pretext.     See Shackelford v. Deloitte &

Touche, LLP, 190 F.3d 398, 408 (5th Cir. 1999).      Perez has thus

failed to produce sufficient evidence of pretext.     The district

court properly granted summary judgment on Perez’s retaliation

claim.

     Perez also claims that Region 20 discharged him due to his

Hispanic national origin.   Again, even assuming that Perez could

make out a prima facie case of discrimination, he simply provided

insufficient evidence that his termination was due to anything

other than his poor work performance.      Poor work performance is a

legitimate, non-discriminatory reason for discharge.      See, e.g.,

Shackelford, 190 F.3d at 408.     The district court properly

granted summary judgment for Region 20 on this claim.
                           No. 01-50591
                               -10-

C.   Americans with Disabilities Act Claim

     Perez next contends that he was discriminated against in

violation of the ADA.   Before addressing the merits of this

claim, we must address the jurisdictional issue of whether

Perez's ADA claim is barred by sovereign immunity.1   We review

Eleventh Amendment immunity determinations de novo.   See Cozzo v.

Tangipahoa Parish Council, 279 F.3d 273, 280 (5th Cir. 2002).

     The Eleventh Amendment bars an individual from suing a state

in federal court unless the state consents to suit or Congress

has clearly and validly abrogated the state's sovereign immunity.

See U.S. CONST. amend. XI; see also, e.g., Coll. Sav. Bank v. Fla.

Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 670 (1999)

(finding an individual may sue a state if the state consents to

suit or Congress validly abrogates sovereign immunity).    The

state need not be the named party in a federal lawsuit, for a

state's Eleventh Amendment immunity extends to any state agency

or entity deemed an "alter ego" or "arm" of the state.     See Vogt

v. Bd. of Comm'rs, 294 F.3d 684, 688-89 (5th Cir. 2002).

     Region 20 and the amicus curie State of Texas argue that

Region 20 is an arm of the state that has not consented to suit




     1
          Sovereign immunity does not bar Perez's Title VII
claims, as we have long recognized that Congress has clearly
abrogated the states' Eleventh Amendment immunity in enacting
Title VII. See, e.g., Ussery v. Louisiana ex rel. La. Dep't of
Health & Hosps., 150 F.3d 431, 434-35 (5th Cir. 1998).
                           No. 01-50591
                               -11-

and Perez's claim under Title I of the ADA is thus barred.2     As

the Supreme Court recently held in Board of Trustees v. Garrett,

Congress did not abrogate the states' sovereign immunity in

enacting Title I of the ADA.   See 531 U.S. 356, 365-74 (2001).

Thus, the Eleventh Amendment bars Perez's ADA claim if Region 20

is considered an arm of the state.

     The inquiry then becomes "whether the lawsuit is one which,

despite the presence of a state agency as the nominal defendant,

is effectively against the sovereign state."    Earles v. State Bd.

of Certified Pub. Accountants, 139 F.3d 1033, 1037 (5th Cir.

1998).   This circuit uses a six-factor test to guide this

inquiry.   Cozzo, 279 F.3d at 281-83; Clark v. Tarrant County, 798

F.2d 736, 744-45 (5th Cir. 1986).    The six factors are: (1)

whether state statutes and case law view the entity as an arm of

the state; (2) the source of the entity's funding; (3) the

entity's degree of local autonomy; (4) whether the entity is

concerned primarily with local, as opposed to statewide,

problems; (5) whether the entity has the authority to sue and be

sued in its own name; and (6) whether the entity has the right to

hold and use property.   See Clark, 798 F.2d at 744-45.    No one

factor is dispositive, though we have deemed the source of an

entity's funding a particularly important factor because a

principal goal of the Eleventh Amendment is to protect state

     2
          Perez argues in his brief that he was not afforded any
opportunity to provide evidence that Region 20 is not an arm of
the state because "the claim was raised for the first time in
[Region 20's] reply." Region 20 asserted its sovereign immunity
defense in its First Amended Answer, directly in response to the
ADA claim in Perez's First Amended Original Petition. Perez has
had sufficient notice of this defense.
                             No. 01-50591
                                 -12-

treasuries.    See Hudson v. City of New Orleans, 174 F.3d 677, 682

(5th Cir. 1999).    An entity need not show that all of the factors

are satisfied; the factors simply provide guidelines for courts

to balance the equities and determine if the suit is really one

against the state itself.    See id.

     The district court concluded that Region 20 is an arm of the

state entitled to Eleventh Amendment immunity.    The district

court noted that the Texas Attorney General considers the Centers

state agencies, that the Centers receive significant funding from

the state, that the Commissioner of Education determines the

number of Centers and their boundaries, and that the Commissioner

directs the Centers in implementing legislative initiatives

assigned to the Commissioner of Education.

     Region 20 and the amicus curie State of Texas provide

sufficient evidence that Region 20 is, in effect, an arm of the

state.   The Education Service Centers are at the intermediate

level of Texas's three-tiered educational system, between the

state education agency and the local school districts.       San

Antonio Indep. Sch. Dist. v. McKinney, 936 S.W.2d 279, 282 (Tex.

1996) ("At the state level, we have the Texas Education Agency,

headed by the Commissioner of Education and the State Board of

Education.    Regionally, the Legislature created Regional

Education Service Centers.    At the local level are independent

school districts.") (citations omitted).    The mission of the

Centers is to "ensure that all Texas children have access to a

quality education" because "a general diffusion of knowledge is

essential for the welfare of this state and for the preservation
                           No. 01-50591
                               -13-

of the liberties and rights of citizens."    TEX. EDUC. CODE ANN.

§ 4.001(a) (Vernon 1996 & Supp. 2002).    The Centers provide

several core services, such as teacher training and assistance to

underperforming school districts, to improve educational

efficiency and performance.   See id. § 8.051.   The Centers also

administer statewide programs, such as technology initiatives,

see id. § 32.001(a)(4), and programs for students with

disabilities, see id. § 29.001(4).

(1) State Statutes and Case Law

     First, we consider whether state statutes and case law view

the Centers as arms of the state.    The Texas Education Code

("Code") reveals that the Centers are more closely aligned with

state, rather than with local, government.    Chapter 7 of the Code

establishes and defines the roles of the Texas Education Agency

("TEA"), see TEX. EDUC. CODE ANN. § 7.021 (Vernon 1996 & Supp.

2002), Commissioner of Education ("Commissioner"), see id.

§ 7.055, and State Board of Education, see id. § 7.102.3     Chapter

8 then explains that the Commissioner is responsible for

establishing Centers for statewide access to educational

resources and programs.   See id. § 8.001.   The Commissioner

supervises the Centers and has broad authority to "decide any

matter concerning the operation or administration of the regional

education service centers."   Id. § 8.001(c).    A key purpose of

the Centers is to "implement initiatives assigned by the

legislature or the commissioner [of education]."     Id. § 8.002(3).

     3
            The Commissioner is appointed by the governor, see TEX.
EDUC. CODE ANN. § 7.051 (Vernon 1996 & Supp. 2002), and is the
executive officer of the TEA, see id. § 7.055(a)(2).
                           No. 01-50591
                               -14-

The Code distinguishes the Centers from local school districts,

which are governed by Chapter 11 of the Code and are not under

the guidance of the Commissioner and the TEA.   See, e.g., id.

§ 11.151(b) (explaining that school district trustees have the

"exclusive power and duty" to govern public schools).   The

Centers, then, are administrative subdivisions within the TEA

according to state statutes.

     Texas case law also suggests that the Centers are arms of

the state.   In Davis v. Education Service Center, the Texarkana

Court of Appeals considered whether a Center should be considered

an arm of the state for purposes of state sovereign immunity.

See 62 S.W.3d 890, 895-96 (Tex. App.--Texarkana 2001, no pet.).

After a brief discussion, the court concluded: "When Davis sued

Region VIII and Ferguson, in his official capacity, she sued the

State of Texas."   Id. at 895.   While the analysis in Davis is not

controlling on the issue of Eleventh Amendment immunity, it

reflects the state's view that suing a Center is equivalent to

suing the state of Texas itself.

     State statutes and case law, then, indicate that the State

of Texas views the Education Service Centers as arms of the

state.4   Perez has not provided adequate summary judgment

     4
          While opinions of the state Attorney General are also
relevant evidence of how a state views an entity, see, e.g.,
Clark, 798 F.2d at 744, Texas Attorney General opinions add
little to our Eleventh Amendment inquiry. The Texas Attorneys
General have offered few opinions concerning the Centers, and
their characterizations of the Centers have varied. In one
opinion, the Attorney General referred to Centers as "state
agenc[ies]," Op. Tex. Att'y Gen. No. MW-61, at 3 (1979), but in
another, the Attorney General stated that Center employees are
"hired by and accountable to the local board of directors," not
the state board, Op. Tex. Att'y Gen. No. JM-203, at 12 (1984).
                           No. 01-50591
                               -15-

evidence to rebut these authorities.5

(2) Source of Funding

     Second, we address the extent to which the Centers receive

funding from the State of Texas.   This inquiry considers both the

state's liability for a judgment rendered against the Centers and

the state's liability for general debts and obligations.    See

Hudson, 174 F.3d at 687.   While the Code does not contain a

specific provision requiring the state to indemnify the Centers

in the case of a judgment, the significant financial support the

state affords to the Centers suggests that a judgment against a

Center would be borne in large part by the state.

     We examine the amount of funding the state provides to an

entity and whether that funding is earmarked for any particular

purposes to determine whether a judgment likely would be paid

with state funds.   See Hudson, 174 F.3d at 688-89.   The State of

Texas provides several types of funding to the Centers.

Initially, Centers receive state funding to provide core services

to school districts and campuses to improve student and school


Neither of the opinions contained any other discussion of the
role of the Centers.
     5
          Perez suggests that Region 20 is not a state agency due
to a statement made by the Commissioner of Education. After his
discharge, Perez filed an administrative complaint with the
Commissioner. In his complaint, Perez argued that the employment
policies of the TEA applied to the Centers and that Region 20
violated the TEA policy against discrimination. The Commissioner
found that the TEA policies did not apply to the Centers because
the Centers were not "agents of TEA." The statement of the
Commissioner was made in response to a specific question
regarding interpretation of the Texas Education Code. The
Commissioner did not address whether Eleventh Amendment immunity
applies to the Centers. We find this evidence unhelpful in
determining whether the Centers are properly considered alter
egos of the state.
                            No. 01-50591
                                -16-

district performance and for basic operational expenses.      See

TEX. EDUC. CODE ANN. §§ 8.051, 8.121 (Vernon 1996 & Supp. 2002).

For 2000-2001, the state appropriated $58.8 million per year to

the Centers for "core services, technical assistance, and program

support."   Tex. H.B. 1, 76th Leg., R.S. (1999).    For 2002-2003,

the state allocated $61 million per year to the Centers.     Tex.

S.B. 1, 77th Leg., R.S. (2001).    Further, the Centers may receive

additional funding from the state, including funds for efficiency

initiatives, see TEX. EDUC. CODE ANN. § 8.122 (Vernon 1996 & Supp.

2002), funding for specific state initiatives, see id. § 8.123,

competitive grants for innovation, see id. § 8.124(a)(1), and

emergency grants, see id. § 8.124(a)(2).     The state Commissioner

of Education has broad authority to distribute state funds and

allocate federal funds to the Centers.     See id. §§ 8.001(c)(3),

8.121(a), 8.122(c), 8.123(b)(2), 8.124(b)(2).      The Centers also

receive local funding through payment by school districts for

certain services and grant contracts with public and private

entities.   See id. §§ 8.053, 8.125.   This local funding, however,

fluctuates based on the Centers' ability to generate revenues;

state funding is the only assured source of funding for the

Centers.    Though the state is not the sole source of funding for

the Centers, we are persuaded that state funding comprises the

"lion's share" of the Centers' budgets.    See Vogt, 294 F.3d at

693; see also Clark, 798 F.2d at 744 (finding that a county

probation department was an arm of the state even though it

generated revenue through probation fees).

     Notably, unlike local school districts, the Centers do not
                            No. 01-50591
                                -17-

possess any tax levying or bonding authority that could be used

to raise funds.   See TEX. EDUC. CODE ANN. § 11.152 (Vernon 1996 &

Supp. 2002).   This fact counsels in favor of granting Region 20

immunity.   See Anderson v. Red River Waterway Comm'n, 231 F.3d

211, 214 (5th Cir. 2000) (finding no sovereign immunity because

waterway commission could raise funds through its statutory

taxing and bonding authority); Hander v. San Jacinto Junior

Coll., 519 F.2d 273, 279 (5th Cir. 1975) (finding no immunity

because state junior college could issue revenue bonds and levy

annual ad valorem taxes).   In light of the Centers' dependence on

the State of Texas for funding and their inability to raise their

own revenues, it seems likely that a judgment rendered against

the Centers would be paid in large portion by the state.     Indeed,

the state provides the base funding for the Centers' operational

expenses.   See TEX. EDUC. CODE ANN. § 8.121(c) (Vernon 1996 & Supp.

2002) ("Each regional education service center shall use money

distributed to it under this section for the provision of core

services . . . or for payment of necessary administrative and

operational expenses of the center related to the provision of

those services.").6

(3) Local Autonomy

     Third, we ask whether the Centers exercise local autonomy or


     6
          Perez notes that the Centers are like school districts
because Centers are subject to or exempt from taxation in the
same way school districts are, see TEX. EDUC. CODE ANN. § 8.005
(Vernon 1996 & Supp. 2002), and because employees of Centers are
immune from liability in the same way employees of school
districts are, see id. § 8.006. Neither of these factors,
though, addresses whether a judgment against a Center would
ultimately be paid by the state.
                            No. 01-50591
                                -18-

whether they are primarily controlled by the state.      Frequent and

broad oversight by the state suggests that the entity is an arm

of the state.    See Hudson, 174 F.3d at 689-90.   In the case of

the Centers, members of the Board of Directors of each Center are

selected locally.    See TEX. EDUC. CODE ANN. § 8.003(b) (Vernon 1996

& Supp. 2002).   The Board of Directors governs each Center,

develops management and operation policies, approves programs and

activities, and establishes the budget.     See id. § 8.003(e).

Though the Directors are selected locally, their election is

largely controlled by the state Commissioner of Education, as the

Commissioner sets rules for selection, appointment, and

continuity of board membership.    See id. § 8.003(b).    Once a

Center's Board is elected, the Commissioner has the power to

appoint a master or replace the Board of Directors if the Center

is not performing well.    See id. §§ 8.104(4), 8.104(5).

Management of the Centers can be distinguished from management of

local school districts, as local school districts determine their

own procedures for electing their Boards of Trustees and Trustees

have exclusive power over the school districts.     See id. §§

11.011, 11.051, 11.052.

     More generally, the Centers are subject to significant

supervision by the state Commissioner of Education.      The

Commissioner has broad authority to "decide any matter concerning

the operation or administration" of the Centers.     See TEX. EDUC.

CODE ANN. § 8.001(c) (Vernon 1996 & Supp. 2002).    The Commissioner

sets operation and performance standards for each Center, see id.

§ 8.101, and Centers are required by law to report their
                             No. 01-50591
                                 -19-

performance to the Commissioner annually, see id. §§ 8.103,

39.054(3)(B).   Underperforming Centers may be sanctioned or even

closed by the Commissioner.     See id. § 8.014.    Further, the

Commissioner must approve the appointment of each Center's

Executive Director and can remove an Executive Director if a

Center is underperforming.    See id. §§ 8.004, 8.104(5).

     The state oversight and control of the Centers contrasts

markedly with the significant autonomy of local school districts.

"Under Texas law, independent school districts enjoy a large

amount of political autonomy from the State, the TEA, and the

[State] Board [of Education]."     McKinney, 936 S.W.2d at 282.

Each school district is governed by a Board of Trustees elected

by the voters of the district.     See TEX. EDUC. CODE ANN. §§ 11.051-

.053 (Vernon 1996 & Supp. 2002).     Trustees have "the exclusive

power and duty to govern . . . public schools of the district."

Id. § 11.151(b).   "Importantly, neither the TEA nor the Board may

substitute its judgment for the lawful exercise by district

trustees of their powers and duties."       McKinney, 936 S.W.2d at

282-83.   The Centers' relative lack of autonomy counsels in favor

of Eleventh Amendment protection.

(4) Local or Statewide Issues

     Fourth, we consider whether the Centers focus primarily on

local or statewide issues.    This factor asks "whether the entity

acts for the benefit and welfare of the state as a whole or for

the special advantage of local inhabitants."       Pendergrass v.

Greater New Orleans Expressway Comm'n, 144 F.3d 342, 347 (5th

Cir. 1998).   A primary mission of the Centers is to ensure
                             No. 01-50591
                                 -20-

statewide uniformity and quality in education.     See TEX. EDUC. CODE

ANN. § 4.001(a) (Vernon 1996 & Supp. 2002).    The Texas

Legislature gave the Commissioner power to establish up to twenty

Centers and delineate their boundaries to serve schools around

the state.    See id. § 8.001.   The Centers are accountable to the

state Commissioner of Education, see, e.g., id. §§ 8.101, 8.103,

not to local voters.    The Centers collect and deliver educational

resources throughout the state, not just in one area; the Centers

are simply divided into regions for convenience.     See id.

§ 8.001(b).   Though "[l]imited territorial boundaries suggest

that an agency is not an arm of the state," an exception applies

when a "regional entity is an administrative division of a

statewide system."     Vogt, 294 F.3d at 695; see also Clark, 798

F.2d at 745 ("Dividing the responsibilities [of the state

probation system] into judicial districts is merely an

administrative tool for handling a statewide, state program.").

The Centers are just such an entity, as they serve as

administrative divisions of the unitary state educational system.

(5) Ability To Sue and Be Sued

     Fifth, we consider whether the Centers can sue or be sued in

their own names.   The ability for an entity to sue and be sued

apart from the state suggests that immunity is not appropriate.

See Williams v. Dallas Area Rapid Transit, 242 F.3d 315, 322 (5th

Cir.), cert. denied, 122 S. Ct. 618 (2001).     The Code does not

grant the Centers any statutory authority to sue, but it also

does not prevent a Center from being sued in its own name.      In

contrast, the Code expressly provides that school districts may
                             No. 01-50591
                                 -21-

sue and be sued.    See TEX. EDUC. CODE ANN. § 11.151(a) (Vernon 1996

& Supp. 2002).   This factor, then, slightly favors immunity for

the Centers.

(6) Ability To Hold and Use Property

     Finally, we consider whether the Centers may hold and use

property.   According to Texas law, the Centers may hold property,

but this right is subject to approval by the Commissioner.      The

Centers are authorized by statute to purchase, lease, and acquire

property.   See TEX. EDUC. CODE ANN. § 8.055(a) (Vernon 1996 & Supp.

2002).   Any transaction involving real property, however, must be

approved by the Commissioner.    See id. § 8.055(b).     Further, the

legislature has prohibited the Centers from purchasing land or

acquiring buildings without prior authorization by the

Commissioner.    See Tex. S.B. 1, 77th Leg., R.S. (2001) (Rider 4);

Tex. H.B. 1, 76th Leg., R.S. (1999) (Rider 4).      In contrast,

local school districts are expressly authorized to "acquire and

hold real and personal property."     TEX. EDUC. CODE. ANN. §

11.151(a) (Vernon 1996 & Supp. 2002).       This factor, then, weighs

slightly in favor of immunity.

     Each of the six factors counsels in favor of immunity, some

more strongly than others.    Combined, these factors make it clear

that Region 20, as one of Texas's Education Service Centers, is

properly considered an arm of the State of Texas and thus enjoys

Eleventh Amendment immunity from suit in federal court.

     Perez contends that even if Region 20 is an arm of the

state, it waived its sovereign immunity by removing this case to

federal district court.    In support of this proposition, he cites
                            No. 01-50591
                                -22-

Lapides v. Board of Regents, where the Supreme Court recently

held that a state entity removing a case to federal district

court waives its sovereign immunity with respect to state law

claims.   See 122 S. Ct. 1640, 1643-46 (2002).    Subsequent to the

point at which we asked for supplemental briefing to assess the

impact of Lapides, our court decided Martinez v. Texas Department

of Criminal Justice.    See No. 00-51135, 2002 WL 1721803 (5th Cir.

July 25, 2002).

     Martinez considered whether a plaintiff's argument of

removal-by-waiver based on Lapides should be considered for the

first time on appeal.    See 2002 WL 1721803, at *6-7.   Martinez

alleged violations of the First Amendment and the Texas

Whistleblower Act.    See id. at *5.   The district court denied

Eleventh Amendment immunity to the defendants, and the defendants

appealed.   See id.   Martinez argued for the first time on appeal

that the defendants' removal to federal court waived their

Eleventh Amendment immunity, citing Lapides.     See id. at *6.     We

noted "our long established course of refusing, absent

extraordinary circumstances, to entertain legal issues raised for

the first time on appeal" and found that no extraordinary

circumstances existed because the law "was not so settled prior

to Lapides that raising [the] waiver-by-removal claim in district

court would have been pointless or futile."      Id. at *7.   We thus

declined to consider the plaintiff's waiver-by-removal argument

for the first time on appeal.    See id.

     The present case is factually on all fours with Martinez.

In this case, Perez raised the removal-by-waiver argument for the
                           No. 01-50591
                               -23-

first time on appeal.   As in Martinez, the relevant inquiry is

whether extraordinary circumstances exist to justify Perez's

failure to raise the waiver argument in the district court.       We

find no extraordinary circumstances in this case justifying

Perez's failure to raise the argument and thus we do not consider

whether Lapides means Region 20 waived its sovereign immunity.

See Martinez, 2002 WL 1721803, at *7.     Put another way, Perez's

claim that Region 20 waived its sovereign immunity has itself

been waived.

     Perez also argues that Texas law waives Region 20's

sovereign immunity.   Perez cites a provision of the Texas Labor

Code which waives sovereign immunity for claims brought under the

Texas Commission on Human Rights Act.     See TEX. LAB. CODE ANN. §§

21.002(8)(D), 21.002(14)(A) (Vernon 1996 & Supp. 2002).      Perez

contends that since a purpose of the Texas Labor Code is to

"provide for the execution of the policies embodied in Title I of

the Americans with Disabilities Act of 1990 and its subsequent

amendments," id. § 21.001(3), the Texas Labor Code's waiver of

sovereign immunity for Texas Labor Code claims in state court

waives sovereign immunity on federal ADA claims in federal court.

     It has long been settled that a state's waiver of its

Eleventh Amendment immunity must be unequivocally expressed.

See, e.g., Edelman v. Jordan, 415 U.S. 651, 673 (1974); Magnolia

Venture Capital Corp. v. Prudential Sec., Inc., 151 F.3d 439,

443-44 (5th Cir. 1998).   A state's waiver of sovereign immunity

in state court does not mean the state has waived Eleventh

Amendment immunity in federal court.    See Martinez, 2002 WL
                           No. 01-50591
                               -24-

1721803, at *7 (citing cases).     The section of the Texas Labor

Code Perez cites does waive sovereign immunity for claims brought

under the Labor Code in state court.     See Sauls v. Montgomery

County, 18 S.W.3d 310, 313-15 (Tex. App.--Beaumont 2000, no

pet.).   The Texas Labor Code, however, does not contain a clear

and unequivocal waiver of immunity from suit with respect to the

ADA, a distinct federal statute.     Further, the cited section does

not expressly waive sovereign immunity in federal court.     Thus,

Perez's contention that the Texas Labor Code waives Region 20's

immunity in this case is meritless.

     The district court properly concluded that Eleventh

Amendment immunity bars Perez's ADA claim.     Thus, we need not

reach the merits of this claim.7

D.   Texas Whistleblower Act Claim

     Perez's final claim is that Region 20 retaliated against him

for reporting another employee's sexual harassment in violation

of the Texas Whistleblower Act.     The Texas Whistleblower Act

prevents a government employer from taking an adverse employment

action against an employee who, in good faith, reports his

employer's violation of law to an appropriate law enforcement

     7
          Perez contends that even if sovereign immunity applies
to Region 20, it bars only his claim for money damages under the
ADA, not his claim for injunctive relief. This argument
misunderstands the nature of suits against states permitted in
federal court under the Eleventh Amendment.
          Suits against state officials for prospective
injunctive relief may be permitted in federal court. See
Garrett, 531 U.S. at 374 n.9; Ex Parte Young, 209 U.S. 123, 155-
56 (1908); see also Edelman, 415 U.S. at 664-65 (distinguishing
between prospective and retroactive injunctive relief). Perez,
however, has sued only Region 20 itself and not any of its
officers. Thus, Perez's argument that sovereign immunity does
not bar injunctive relief in his case fails.
                            No. 01-50591
                                -25-

agency.   TEX. GOV'T CODE ANN. § 554.002 (Vernon 1994 & Supp. 2002).

      The district court found that Perez's Whistleblower Act

claim failed on the merits.     We need not address the merits of

the Texas Whistleblower Act claim because this claim is barred by

Eleventh Amendment immunity as well.8      The Texas Whistleblower

Act waives sovereign immunity in state court.      See TEX. GOV'T CODE

ANN. § 554.0035 (Vernon 1994 & Supp. 2002) ("Sovereign immunity

is waived and abolished to the extent of liability for the relief

allowed under this chapter for a violation of this chapter.").

We recently held, however, that the Texas Whistleblower Act's

waiver of sovereign immunity in Texas state court does not amount

to a waiver of its sovereign immunity in federal court.       See

Martinez, 2002 WL 1721803, at *7-8.     We noted that "[e]ven when a

State consents to suit in its own courts, . . . it may retain

Eleventh Amendment immunity from suit in federal court."       Id. at

*7.   We then examined the text of the waiver provision in the

Whistleblower Act and concluded that the Act does not "evidence[]

any intent by Texas to waive its Eleventh Amendment immunity and

subject itself to suit in federal courts."      Id.   Since we hold

that Region 20 is an arm of the State of Texas, sovereign

immunity bars Perez's claim under the Whistleblower Act.       We

affirm summary judgment on this claim, though on different

grounds that those cited by the district court.

                          IV.    CONCLUSION

      8
          Although Region 20 did not argue that sovereign
immunity bars the Texas Whistleblower Act claim, we may consider
this issue sua sponte because it bears on this court's subject-
matter jurisdiction. See Burge v. Parish of St. Tammany, 187
F.3d 452, 465-66 (5th Cir. 1999).
                          No. 01-50591
                              -26-

     The judgment of the district court is AFFIRMED.   All

outstanding motions are DENIED as moot.
