1 Tex.Civ.Prac. & Rem.Code Ann. § 101.001 et seq. (West 1986 & Supp.1996).

1 United States Court of Appeals,

Fifth Circuit.

No. 96-20146.

Ronald SHERWINSKI, Plaintiff-Appellee,

v.

Jerry PETERSON, Warden of the Texas Department of Criminal Justice, Institutional Division,

Wynne Unit, et al., Defendants,

Texas Department of Criminal Justice, Defendant-Appellant.

Nov. 4, 1996.

Appeal from the United States District Court for the Southern District of Texas.

Before WISDOM, JOLLY and BENAVIDES, Circuit Judges.

WISDOM, Circuit Judge.

Ronald Sherwinski, a Texas state prisoner, filed suit aga inst prison officials and a prison

doctor asserting a claim

fo r damages based on their alleged deliberate indifference to his serious

m edical needs in violation of the Eighth Amendment and 42 U.S.C. § 1983. He asserted a

supplemental state law claim against the Texas Department of Criminal Justice, Institutional Division

(the "Department") under the Texas Tort Cl ai m s Act. 1 The Department filed a motion to dismiss

arguin g that the Act provided for suit against the Department only in state court and asserting

immunit y from suit in federal court under the Eleventh Amendment. The district court denied the

Department's motion to dismiss, stating that "[u]ntil the factual and legal basis of the case has been

further developed, no defendants will be dismissed". The Department appeals this decision.

Jurisdiction

Title 28 U.S.C. § 1291 provides that "[t]he courts of appeals shall have jurisdiction of appeals

from all final decisions of the district courts of the United States". Appeal is thereby precluded "from

any decision which is tentative, informal, or incomplete", as well as from a ny "fully consummated2 Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225, 93

L.Ed. 1528 (1949).

3 Puerto Rico Aqueduct and Sew er Authority v. Metcalf & Eddy, Inc., 506 U.S. 139, 147, 113

S.Ct. 684, 689, 121 L.Ed.2d 605 (1993); Loya v. Texas Department of Corrections, 878 F.2d

860, 861 (5th Cir.1989).

4 Id. at 146, 113 S.Ct. at 689, quoting, In re Ayers, 123 U.S. 443, 505, 8 S.Ct. 164, 183, 31

L.Ed. 216 (1887).

5 Id.

6 Edelman v. Jordan, 415 U.S. 651, 663, 94 S.Ct. 1347, 1355-56, 39 L.Ed.2d 662 (1974).

2 decisions, where they are but steps towards final judg ment in which they will merge". 2 Under the

collateral order doctrine, a decision, not otherwise final, is appealable if the decision "fall[s] in that

small class [of interlocutory decisi o ns] which finally determine claims of right separable from, and

collateral to, rights asserted in the action, too important to be denied review and too independent of

the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.

The Court has long given [§ 1291] this practica l rat her than a technical construction." States and

state entities may take advantage of the collateral order doctrine to appeal a district court order

denying a claim of Eleventh Amendment immunity. 3

The district court's order does not deny the Department's motion to dismiss based on an

express finding of no immunity, but the end result is the same—the Texas Department of Criminal

Justice, an arm of the State of Texas, is still involved in this litigation. "The very object and purpose

of the Eleventh Amendment [is] to prevent the indignity of subjecting a State to the coercive process

of judicial tribunals at the instance of private parties." 4 Furthermore, "the value to the States of their

Elev ent h Amendment immunity ... is for the most part lost as litigation proceeds past motion

practice". 5 This Court, therefore, has jurisdiction over this appeal under the collateral order doctrine.

Eleventh Amendment

The Supreme Court has held that an unconsenting state is immune from suits brought in

federal courts by her own citizens as well as by citizens of another state. 6 Absent waiver, neither a7 Puerto Rico Aqueduct, 506 U.S. at 144, 113 S.Ct. at 687-88.

8 Tex.Civ.Prac. & Rem.Code Ann. § 101.102(a) (West 1986 & Supp.1996) (emphasis added).

Prior to a 1987 amendment, § 101.102 provided: "A suit under this chapter shall be brought in

the county in which the cause of action or a part of the cause of action arises." Tex.Civ.Prac. &

Rem.Code Ann. § 101.102(a) (West 1986). The 1987 amendment inserted the phrase " in state

court ". This amendment makes it clear that the legislative intent was to waive sovereign

immunity in state court only.

9 Welch v. Department of Highw ays and Public Transportation, 483 U.S. 468, 473-74, 107

S.Ct. 2941, 2945-46, 97 L.Ed.2d 389 (1987).

10 Id. at 473, 107 S.Ct. at 2946, quoting, Pennhurst State School & Hospital v. Halderman,

465 U.S. 89, 99, 104 S.Ct. 900, 907, 79 L.Ed.2d 67 (1984) (emphasis in original).

11 Edelman v. Jordan, 415 U.S. 651, 673, 94 S.Ct. 1347, 1360-61, 39 L.Ed.2d 662 (1974),

quoting, Murry v. Wilson Distilling Co., 213 U.S. 151, 171, 29 S.Ct. 458, 464, 53 L.Ed. 742

(1909).

3 state nor agencies acting under its control are subject to suit in federal court. 7 The Plaintiff brings

suit under the Texas Tort Claims Act. The Act specifically provides that "[a] suit under this chapter

shall be brought in state court in the county in which the cause of action arose or a part of the cause

of action arises". 8 A state does not waive Eleventh Amendment immunity in federal courts merely

by waiving sovereign immunit y in its own courts. 9 "A state's const it utional interest in immunity

encompasses not merely whether it may be sued, but where it may be sued." 10 "In deciding whether

a state has waived its constitutional protecti on under the Eleventh Amendment, we will find waiver

only where stated "by the most express language or by such overwhelming implications from the text

as [will] leave no room for any other reasonable construction' ". 11

Applying this standard, we find that the statute waives sovereign immunit y in state court only.

This is the only reasonable construction of the statute. The Act clearly does not waive Eleventh

Amendmen t immunity to suit in federal courts. The district court order denying the Department's

Moti on to Dismiss is REVERSED and the case is REMANDED to the district court for the entry of

an order dismissing the state law claim against the Department.