               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                           No. 01-20507
                         Summary Calendar



JOHN O’NEAL HENRY,

                                         Plaintiff-Appellant,

versus

BOARD OF PARDONS AND PAROLES; TEXAS
DEPARTMENT OF CRIMINAL JUSTICE-INSTITUTIONAL DIVISION,

                                         Defendants-Appellees.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                      USDC No. H-01-CV-279
                      --------------------
                       September 17, 2001

Before JONES, SMITH, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

     John O'Neal Henry, Texas prisoner # 324238, seeks to proceed

in forma pauperis (“IFP”) in the appeal of the dismissal of his

civil rights complaint as frivolous under 28 U.S.C. § 1915.     By

moving for IFP, Henry is challenging the district court’s

certification that IFP status should not be granted on appeal

because his appeal is not taken in good faith.   See Baugh v.

Taylor, 117 F.3d 197, 202 (5th Cir. 1997).




     *
        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that this opinion should not be published and is not precedent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. 01-20507
                                -2-

     Henry challenges the district court's decision to dismiss as

frivolous his claim that his constitutional rights were violated

when Tex. Code Crim. P. art. 42.18, pertaining to parole, was

applied to him instead of Tex. Code Crim. P. art. 42.12, which

applied at the time of his conviction.    Henry had alleged that

his rights were violated because article 42.18 requires parolees

to pay a supervisory parole fee and does not mandate annual

parole review.   Henry also challenges the district court's

decision to dismiss as frivolous his claim that his rights under

Title II of the Americans with Disabilities Act ("ADA") were

violated because he has been denied access to a substance abuse

program on account of his hearing impairment.    Henry's IFP motion

does not challenge the district court's dismissal as frivolous of

his race discrimination claim, Rehabilitation Act ("RA") claim,

and claims stemming from the alleged denial of good time and

street time credits, and thus any arguments in that regard are

deemed abandoned.   See Yohey v. Collins, 985 F.2d 222, 224-25

(5th Cir. 1993).

     The district court did not abuse its discretion in

dismissing as frivolous Henry's claim that application of Tex.

Code Crim. P. art. 42.18 to him is unconstitutional because it

allows for parole review at greater than one-year intervals.       See

Orellana v. Kyle, 65 F.3d 29, 32 (5th Cir. 1995).

     The district court abused its discretion in dismissing as

frivolous Henry's claim that application of Tex. Code Crim. P.

art. 42.18 to him violates the Ex Post Facto Clause because the

statute requires payment of a supervisory parole fee that was not
                             No. 01-20507
                                  -3-

required by Tex. Code Crim. P. art. 42.12.      See Sheppard v.

Louisiana Bd. of Parole, 873 F.2d 761, 764-65 (5th Cir.

1989)(citing Murray v. Phelps, No. 88-3302 (February 3rd, 1989),

in attached Appendix I)(remanding for examination by district

court a 42 U.S.C. § 1983 claim asserting that a Louisiana statute

requiring parolees to pay a supervisory violated the Ex Post

Facto Clause).

     The district court also abused its discretion in dismissing

Henry's ADA claim in reliance on Board of Trustees of Univ. of

Alabama v. Garrett, 531 U.S. 356, 121 S. Ct. 955 (2001).      That

case held that Title I of the ADA did not abrogate the states'

Eleventh Amendment immunity from suit for money damages, but the

Court did not decide whether a suit for damages may be maintained

under Title II of the ADA.    See Garrett, 121 S. Ct. at 960 n.1.

This court has not decided whether Garrett applies to Title II

ADA suits.   See Shaboon v. Duncan, 252 F.3d 722, 757 (5th Cir.

2001).   Further, liberally construed, Henry's complaint sought

injunctive as well as monetary relief.      The district court's

dismissal of the claim as frivolous without further factual

development was premature.    See Gartrell v. Gaylor, 981 F.2d 254,

259 (5th Cir. 1993).

     Henry’s motion for IFP is GRANTED.      The district court’s

dismissal as frivolous of Henry’s claims concerning interval of

parole review, race discrimination, the RA, and the alleged

denial of good time and street time credits are AFFIRMED.      The

district court's dismissal as frivolous of Henry's 42 U.S.C.
                          No. 01-20507
                               -4-

§ 1983 supervisory-parole-fee claim and ADA claim is VACATED and

REMANDED.

     MOTION FOR IFP GRANTED; AFFIRMED IN PART; VACATED AND

REMANDED IN PART.
