           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                         December 3, 2009

                                       No. 09-20020                    Charles R. Fulbruge III
                                                                               Clerk

CECIL C. COX, Individually and as Representative of the Estate of Larry
Louis Cox; ROBERT EARL COX,


                                                   Plaintiffs - Appellees
v.

STATE OF TEXAS; TEXAS DEPARTMENT OF CRIMINAL JUSTICE,


                                                   Defendants - Appellants




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:08-cv-02758


Before STEWART, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:*
       The State of Texas and the Texas Department of Criminal Justice
(“TDCJ”) appeal from the district court’s denial of their motions to dismiss,
which were based on the Eleventh Amendment and sovereign immunity. We
REVERSE and REMAND.


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                      No. 09-20020

                    I. FACTS AND PROCEDURAL HISTORY
      Appellees brought this suit, seeking both monetary and injunctive relief
under 42 U.S.C. § 1983 and state law, against numerous defendants, including
Texas and TDCJ. Appellees allege that Texas and TDCJ, among others, are
liable for the death of Larry Louis Cox, a former inmate of TDCJ. Texas and
TDCJ moved to dismiss Appellees’ claims against them on the basis of the
Eleventh Amendment and sovereign immunity. The district court denied their
motions. This interlocutory appeal followed.1
                                    II. DISCUSSION
      We have jurisdiction over this appeal because the “denial of [a] motion to
dismiss . . . on the grounds of eleventh amendment immunity is a final decision
appealable under 28 U.S.C § 1291.” Loya v. Tex. Dep’t of Corrs., 878 F.2d 860,
861 (5th Cir. 1989) (citing ENG v. Coughlin, 858 F.2d 889, 894 (2d Cir. 1988)).
“We review Eleventh Amendment immunity determinations, like other questions
of subject matter jurisdiction, de novo as a question of law.” United States v.
Tex. Tech. Univ., 171 F.3d 279, 288 (5th Cir. 1999).
      Under the Eleventh Amendment, “[a]bsent waiver, neither a State nor
agencies acting under its control may ‘be subject to suit in federal court.’” P.R.
Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144 (1993)
(quoting Welch v. Tex. Dep’t of Highways & Pub. Transp., 483 U.S. 468, 480
(1987)); Edelman v. Jordan, 415 U.S. 651, 663 (1974). We have previously held
that TDCJ is a state agency that enjoys immunity from suit in federal court.
Harris v. Angelina County, Tex., 31 F.3d 331, 338 n.7 (5th Cir. 1994) (“Under the
current state of the law, the TDCJ is deemed an instrumentality of the state
operating as its alter ego in carrying out a public function of the state, and is




      1
          This appeal only concerns the motions to dismiss filed by Texas and TDCJ.

                                             2
                                   No. 09-20020

immune from suit under the Eleventh Amendment.”); Aguilar v. Tex. Dep’t of
Criminal Justice, 160 F.3d 1052, 1054 (5th Cir. 1998).
      Appellees, citing Ex Parte Young, 209 U.S. 123 (1908), assert that the
Eleventh Amendment does not apply to their claims because they are seeking
prospective injunctive relief against Texas and TDCJ. Appellees’ attempt to
avoid the Eleventh Amendment on this basis is mistaken for two reasons. First,
Eleventh Amendment immunity applies to all suits brought against “States and
their agencies . . . regardless of the relief sought.” P.R. Aqueduct & Sewer Auth.,
506 U.S. at 146 (citing Cory v. White, 457 U.S. 85, 90-91 (1982)).      Second, Ex
Parte Young only applies to suits for prospective relief against state officials; it
“has no application in suits against . . . States and their agencies.” Id.; Cox v.
City of Dallas, Tex., 256 F.3d 281, 307 (5th Cir. 2001) (“Ex parte Young held that
the Eleventh Amendment does not bar a suit against a state official who is
alleged to be acting in violation of federal law.”).
      Accordingly, Appellees’ state law and § 1983 claims are barred unless
Texas or TDCJ has waived its immunity. See Harris, 31 F.3d at 338 n.7 (“State
law claims against the State defendants . . . are also barred by the Eleventh
Amendment.” (citing Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89,
102-103, 124-26 (1984))); Quern v. Jordan, 440 U.S. 332, 341 (1979) (stating that
§ 1983 does not “override the traditional sovereign immunity of the States”).
Neither Texas nor TDCJ has waived its immunity; therefore, Appellees’ claims
against them are barred by the Eleventh Amendment.
                               III. CONCLUSION
      For the foregoing reasons, we REVERSE the district court’s orders denying
the State of Texas’s and Texas Department of Criminal Justice’s motions to
dismiss, and we REMAND to the district court to enter an order granting the
motions and dismissing these defendants.



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