*

 District Judge of the Northern District of Texas, sitting by designation.

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UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 00-50485

SOUTHWESTERN BELL TELEPHONE COMPANY,

Plaintiff-Appellee,

VERSUS

CITY OF EL PASO, et al.,

Defendants,

and

EL PASO COUNTY WATER IMPROVEMENT DISTRICT NO.1,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of Texas

El Paso Division

March 19, 2001

Before DUHÉ and PARKER, Circuit Judges, and LINDSAY,* District Judge.

ROBERT M. PARKER, Circuit Judge:

Appellant El Paso County Water Improvement District No. 1 appeals the district court’s

denial of its motion to dismiss on Eleventh Amendment grounds. Because we conclude that the
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district court applied the proper legal standard in reviewing Appellant’s motion, we AFFIRM.

I.

Appellant is a water improvement district created pursuant to Article XVI, Section 59, of the

Texas Constitution. Appellant owns a series of irrigation ditches deeded from the United States

Bureau of Reclamation to Appellant in January 1996. Development in the area of the ditches has

resulted in the development of roads crossing the ditches and in an increase in the demand for

telephone service, which is provided by installing telephone lines along such roads. Appellant has

established certain application procedures for entities wanting to cross the canals, laterals, and

ditches–rights-of-way owned by Appellant. Such procedures require an entity to complete an

application, pay an application fee, and obtain a survey. The application must be preliminarily

approved by Appellant’s Board of Directors, which, upon completion of the survey, assesses a

payment against the entity based on the length of the crossing.

Appellee, a telecommunications services provider, brought this action seeking declaratory and

injunctive relief against the City of El Paso and Appellant for their alleged violation of the federal

Telecommunications Act of 1996 (“FTA”), the Texas Public UtilitiesRegulation Act (“PURA”), and

other state law. Appellee and the City of El Paso have settled their claims. Appellee’s claims against

Appellant allege, inter alia, that under the FTA and PURA, Appellant cannot demand payment and

a detailed application from Appellee for laying telephone lines that cross Appellant’s rights-of-way.

In response, Appellant counterclaimed against Appellee for trespass and/or taking property

for public use without compensation; more importantly, Appellant moved to dismiss Appellant’s

claims under the Eleventh Amendment, arguing that it was an arm of the State of Texas and thus

Appellee’s claims were barred bythe EleventhAmendment. The district court, applying our “arm-ofthe-state” analysis noted in Clark v. Tarrant County, 798 F.2d 736, 744-45 (5th Cir. 1986), held 
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that Appellant was not an arm of the State of Texas, and thus was not entitled to Eleventh

Amendment immunity.

 II.

We review the district court’s order denying a motion to dismiss on Eleventh Amendment

grounds as an appealable collateral order based on an issue of law, see Champagne v. Jefferson

Parish Sheriff’s Office, 188 F.3d 312, 313 (5th Cir. 1999) (per curiam), and we review the district

court’s conclusions of law de novo. Id.

The Eleventh Amendment provides:

The Judicial power of the United States shall not be construed to extend to any suit

in law or equity, commenced or prosecuted against one of the United States by

Citizens of another State, or by Citizens or Subjects of any Foreign State.

U.S.CONST. amend. XI. “[T]he reference to actions ‘against one of the United States’ encompasses

not only actions in which a State is actually named as the defendant, but also certain actions against

state agents and state instrumentalities.” Regents of the Univ. of Cal. v. Doe, 519 U.S. 425, 429

(1997). However, the Eleventh Amendment bar to suit in federal courts only extends to states, state

officials, and state instrumentalities in appropriate circumstances, and does not extend to counties,

similar municipal corporations, and other political subdivisions, even though such entities enjoy a

“slice of state power.” Lake Country Estates, Inc. v. Tahoe Reg’l Planning Agency, 440 U.S. 391,

400-01 (1979); Mt. Healthy City Bd. of Ed. v. Doyle, 429 U.S. 274, 280 (1977); Moor v. County of

Alameda, 411 U.S. 693, 717-21 (1973); Lincoln County v. Luning, 133 U.S. 529, 530 (1890).

When determining whether a state agency or instrumentality may invoke the state’simmunity

as an arm of the state, courts must review the relationship between the state and the entity in

question, examining the essential nature of the proceeding, the nature of the entity created by state

law, and whether a money judgment against the instrumentality would be enforceable against the
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state. Doe, 519 U.S. at 429-30 (citing Kennecott Copper Corp. v. State Tax Comm’n, 327 U.S. 573,

576 (1946); Mt. Healthy City, 429 U.S. at 280; Hess v. Port Auth. Trans-Hudson Corp., 513 U.S.

30, 45-51 (1994)).

We have stated that this arm-of-the-state analysis requires the examination of “the powers,

characteristics and relationships created bystate law in order to determine whether [a]suit isin reality

against the state itself.” Hander v. San Jacinto Junior Coll., 519 F.2d 273, 279 (5th Cir. 1975)

(citing Aerojet-General Corp. v. Askew, 453 F.2d 819 (5th Cir. 1971), cert. denied, 409 U.S. 892

(1972)); see also Laje v. R.E. Thomason Gen. Hosp., 665 F.2d 724, 727 (5th Cir. 1982); United

Carolina Bank v. Board of Regents, 665 F.2d 553, 557 (5th Cir. Unit A 1982); Jagnandan v. Giles,

538 F.2d 1166, 1173-74 (5th Cir. 1976), cert. denied, 432 U.S. 910 (1977). In conducting such

analysis, we have held that “comparisons [between like entities] cannot substitute for a careful

examination ofthe particular entity at issue.” McDonald v. Board of Miss. LeveeComm’rs, 832 F.2d

901, 908 (5thCir. 1987);see also Hudson v. City of NewOrleans, 174 F.3d 677, 681 (5thCir.), cert.

denied sub nom. Connick v. Hudson, 528 U.S. 1004 (1999);Flores v. CameronCounty, 92 F.3d 258,

268 (5th Cir. 1996).

We have refined the arm-of-the-state analysis to require examination of a variety of factors

concerning the particular entity in question. See Clark v. Tarrant County, 798 F.2d 736, 744-45 (5th

Cir. 1986). These factors include (1) whether the 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 it has the right to

hold and use property. Id. These factors are examined as a whole, and no single factor is dispositive.

Id. at 745; see also United Carolina Bank, 665 F.2d at 557. However, the second factor, the source
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of the entity’s funding, is “of considerable importance.” Doe, 519 U.S. at 904; 

Jacintoport v. Greater Baton Rouge Port Comm’n, 762 F.2d 435, 440-41 (5th Cir. 1985), cert.

denied, 474 U.S. 1057 (1986); Laje, 665 F.2d at 727.

Appellant argues that the district court erred by applying the arm-of-the-state analysis

established in Clark because our prior decisions hold Appellant as an arm of the state entitled to

Eleventh Amendment immunity. Specifically, Appellant argues that our decision in Ysleta Del Sur

Pueblo v. El Paso County Water Improvement Dist., 222 F.3d 208 (5th Cir.), cert. denied, 121 S.

Ct. 177 (2000), which affirmed the district court’s finding of Eleventh Amendment immunity for

Appellant, controls this action. Appellant also argues that our prior decisions in Kamani v. Port of

Houston Authority, 702 F.2d 612 (5th Cir. 1983), and Pillsbury Co. v. Port of Corpus Christi

Authority, 66 F.3d 103 (5th Cir. 1995), cert. denied, 517 U.S. 1203 (1996), held that the entities at

issue in those cases were entitled to Eleventh Amendment immunity by virtue of their creation

pursuant to Article XVI, Section 59, of the Texas Constitution. Because Appellant is also created

under Article XVI, Section 59, Appellant argues that it is likewise entitled to immunity.

We disagree with both arguments. First, Ysleta is not controlling because it conflicts with our

prior decisionsrequiring a careful examination ofthe nature of an entityclaiming immunity. Although

Ysleta affirmed the district court’s holding that Appellant was an arm of the state entitled to

immunity, it stated no reasons for the decision except to say that the plaintiff’s arguments in that

appeal “lack[ed] merit.” Ysleta, 222 F.3d at 208. In support of this conclusion, Ysleta cited Kamani

and Pillsbury without further explanation. Kamani was an admiralty action in which the court stated

without analysis that the Port of Houston Authority was “a ‘creature of state law and a political

subdivision of the State of Texas” entitled to Eleventh Amendment immunity. Kamani, 702 F.2d at

613. Pillsbury was a breach-of-contract action in which the court held that the Port ofCorpusChristi
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Authority was factually and legally indistinguishable from the Port of Houston Authority, and was

thus entitled to immunity under Kamani. Pillsbury, 66 F.3d at 104.

Ysleta’s conflict with prior decisions establishing the arm-of-the-state analysis originates with

Kamani. Notwithstanding the arm-of-the-state analysis established by decisions such as Hander,

Jagnandan, United Carolina Bank, and Laje, Kamani relied on McCrea v. Harris County Ship

Channel Navigation Dist., 423 F.2d 605, 607 (5th Cir.), cert. denied, 400 U.S. 927 (1970), in

concluding that the Port ofHoustonAuthoritywas entitled to immunity. However, McCrea involved

a wrongful death action under the Federal Employers’ Liability Act that did not involve the Eleventh

Amendment at all. In McCrea, the court simply observed that the Port of Houston Authority “is a

creature of state law and a political subdivision of the State of Texas operating terminal facilities at

the Port of Houston” in concluding that the port was not a “rail carrier” under the FELA. McCrea,

423 F.2d at 607. While McCrea did examine the port’s organizational and operationalcharacteristics,

such examination is different from the arm-of-the-state analysis required to determine whether an

entity is entitled to Eleventh Amendment immunity. See Jacintoport, 762 F.2d at 440 (“It would be

inconsistent withthisCircuit’stest for determining [EleventhAmendment]immunityto relyonMiller

[v. Greater Baton Rouge Port Comm’n, 74 So.2d 387 (La. 1954)], because immunity of the [entity

at issue] was never an issue in that case.”). In light of our decisions requiring the application of the

arm-of-the-state analysis, Kamani’s quotation of McCrea’s statement that the Port of Houston is a

“creature of state law and a political subdivision of the State of Texas” does not automatically

support the conclusion that the Port of Houston Authority is entitled to Eleventh Amendment

immunity. An entity is not an arm of the state for Eleventh Amendment purposes simply because it

is a creature ofstate law and a politicalsubdivision of a state. Such conclusion would entirely obviate

the arm-of-the-state analysis because every entity claiming Eleventh Amendment immunity is a
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“creature” of some state law. Moreover, political subdivisons of states are generally not entitled to

Eleventh Amendment immunity. See Lake Country Estates, 440 U.S. at 401; Lincoln County, 133

U.S. at 530-31. Kamani’s conclusion that the Port of Houston Authority was entitled to immunity

by virtue of its status as a creature ofstate law and a politicalsubdivision of Texas conflicts with the

line of precedent beginning with at least Hander, Jagnandan, United Carolina Bank, and Laje.

Pillsbury continued the conflict by applying Kamani to hold that the Port of Corpus Christi

Authority was entitled to Eleventh Amendment immunity. This result is not surprising because the

Port of Corpus Christi Authority was held to be factually and legally indistinguishable from the Port

of Houston Authority in Kamani. While Pillsbury noted that a proper arm-of-the-state analysis

would result in the same conclusion, the conflict created by Kamani was not addressed. In addition,

the court suggested in dicta that its decision was controlled by Kamani because both ports were

created pursuant to Article XVI, Section 59.

Ysleta thus rests on holdings that conflict with our prior decisions requiring an arm-of-thestate analysis for entities claiming Eleventh Amendment immunity, and the district court did not err

when it applied Clark’s six-fact or analysis. When two holdings or lines of precedent conflict, the

earlier holding or line of precedent controls. Billiot v. Puckett, 135 F.3d 311, 316 (5th Cir.), cert.

denied sub nom. Billiot v. Anderson, 525 U.S. 966 (1998). In this action, although Kamani was

decided before Clark, Clark’s arm-of-the-state analysis is a consistent part of a line of precedent

including at least Hander, Jagnandan, United Carolina Bank, and Laje, which were all decided

before Kamani. Therefore, the district court properly applied Clark in denying Appellant’s Eleventh

Amendment argument. Moreover, even though Ysleta was decided before the district court issued

its decision, it was published after that decision and thus was not precedent for the district court. See

FIFTH CIR. R. 47.5.4.
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We also reject Appellant’s second argument that it is entitled to Eleventh Amendment

immunity by virtue ofits creation pursuant to Article XVI, Section 59. Even if Kamani and Pillsbury

applied the proper arm-of-the-state analysis, they do not state that an entity is entitled to Eleventh

Amendment immunity simply because they are created under a particular state law. While Pillsbury

noted that both ports were created pursuant to Article XVI, Section 59, there is no suggestion in that

decision that the particular law under which an entity is created is the sole factor in determining the

issue of immunity. Our decisions clearly forbid such a result. See, e.g., Jacintoport, 762 F.2d at 439-

40. Moreover, even though Ysleta affirmed the district court’s conclusion that we established a

“bright-line test” for determining whether an entity created pursuant to Article XVI, Section 59, is

entitled to immunity, such a test is contrary to our decisions requiring the application of the arm-ofthe-state analysis and to the principle that comparisons or analogies between like entities cannot

substitute for a proper analysis of the particular entity claiming immunity. See, e.g., McDonald, 832

F.2d at 908. Indeed, such a test is no test at all.

Finally, because Appellant does not challenge the district court’s application ofthe individual

factors ofthe arm-of-the-state analysis, we willnot addresssuch application. While Appellant argues

in its reply brief that Appellee’s defense of the district court’s application of the factors is

“fundamentally flawed,” Appellant does not specifically challenge the district court’s analysis, and

we will not construe Appellant’s argument as such.

III.

Based on the reasonsstated above, weAFFIRMthe district court’s order denying Appellant’s
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motion to dismiss on Eleventh Amendment grounds.