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

1 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 di smiss on Eleventh Amendment grounds. Because we conclude that the2

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 o f irrigation ditches deeded from the United States

Bureau of Reclamation to Appellant in January 1996. Development in the area o f t he 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 inst alling telephone lines a lo ng such roads. Appellant has

est ablished 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 telec om

munications services provider, brought this action seeking declaratory and

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

Telecommunications Act of 1996 (“FTA”), the Texas Public Utilities Regulation 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 pu blic 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 by the Eleventh Amendment. The district court, applying our “arm-ofthe-state” analysis noted in Clark v. Tarrant County , 798 F.2d 736, 744-45 (5th Cir. 1986), held3

that Appellant wa s no t an arm of the State of Texas, and thus was not entitled to Eleventh

Amendment immunit

y.

II.

We review the district court’s order denying a motion t o dismiss on Eleventh Amendment

gro unds as an appealable collateral order based on an issue of law, s ee 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 o r prosecuted against one of the United States by

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

U.S. C ONST

. 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 agent s and st at e instrumentalities.” R egents 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 po lit ical subdivisions, even though such entities enjoy a

“slice of state power.” L ake 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’s immunit y

as an arm of the state, courts must review the relationship be tween the state and the enti ty i n

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

law, and whether a money judgment against the i nst rument ality would be enforceable against the4

state. D oe

, 519 U.S. at 429-30 (citing K ennecott Copper Corp. v. State Tax Comm’n

, 327 U.S. 573,

576 (1946); Mt. Healthy City

, 429 U.S. at 280; H ess 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 by state law in order to determine whether [a] suit is in reality

against the state itself.” H ander v. San Jacinto Junior Coll.

, 519 F.2d 273, 279 (5th Ci r. 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); U nited

Carolina Bank v. Board of Regents

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

,

538 F.2d 1166, 11 73-74 (5th Ci r. 1976), c ert. denied

, 432 U.S. 910 (1977). In conducting such

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

examination of the particular entity at issue.” M cDonald v. Board of Miss. Levee Comm’rs

, 832 F.2d

901, 908 (5th Cir. 1987); see also Hudson v. City of New Orleans

, 174 F.3d 677, 681 (5th Cir.), cert.

denied sub nom. Connick v. Hudson

, 528 U.S. 1004 (1999); Flores v. Cameron County

, 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. S ee 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 ent i ty has the authority to sue and be sued in its own name; and (6) whether it has the right to

hold and use property

. I

d. 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 source5

of the entity’s funding, is “of considerable importance.” Doe , 519 U.S. at 904;

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

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

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

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

Eleventh Amendment immunity. Specifically, Appellant argues that our decision in Y sleta 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 E leventh 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 immunit y by virtue of their creati on

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, Y sleta is not controlling because it conflicts with our

prior decisions requiring a careful examination of the nature of an entity claiming immunit y. Although

Ysleta affirmed the district court’s holding that Appellant was a n arm of the state enti tl ed to

immunit y, it stated no reasons for the decision excep t t o say t hat the plaintiff’s arguments in that

appeal “lack[ed] merit.” Y sleta

, 222 F.3d at 208. In support of this conclusion, Y sleta cited Kamani

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

wit ho ut 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 immunit y. K amani

, 702 F.2d at

613. P illsbury was a breach-of-contract action in which the court held that the Port of Corpus Christi6

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 establi shed by decisions such as H ander

,

Jagnandan

, United Carolina Bank

, and Laje

, Kamani relied on McC rea v. Harris County Ship

Channel Navigation Dist.

, 42 3 F.2d 605, 607 (5th Ci r.), c ert. denied

, 400 U.S. 927 (1970), in

concluding that the Port of Houston Authority was entitled to immunit y. However, M cCrea involved

a wrongful death action under the Federal Employers’ Liabilit y 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 facilit ies at

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

,

423 F.2d at 607. While M

cCrea did examine the port’s organizational and operational characteristics,

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

entity is entitled to Eleventh Amendment immunit y. S ee Jacintoport

, 762 F.2d at 440 (“It would be

inconsistent with this Circuit’s test for determining [Eleventh Amendment] immunit y to rely on Miller

[ v. Greater Baton Rouge Port Comm’n

, 74 So.2d 387 (La. 1954)], because immunit y 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 quotati on 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 entitle d t o Eleventh Amendment

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

is a creature of state law and a political subdivision of a state. Such conclusion would entirely obviate

the arm-of-the-state analysis because every entity claiming Eleventh Amendment immunit y is a7

“creature” of some state law. Moreover, political subdivisons of states are generally n ot entitled to

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

, 133

U.S. at 530-31. K

amani ’s conclusion that the Port of Houston Authority was entitled to immunit y

by virtue of its status as a creature of state law and a political subdivision 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 P illsbury noted that a proper arm-of-the-state a nalysis

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 K amani 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 immunit y, and the district court did not err

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

earlier holding or line of precedent controls. B illiot 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 K amani was

decided before Clark

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

including a t least H

ander

, Jagnandan

, United Carolina Bank

, and Laje

, which were all decided

before Kamani

. Therefore, the district court properly applied C lark 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. S ee

F IFTH C IR

. R. 47.5.4.8

We also reject Appellant’s second argument that it is entit led to Eleventh Amendment

immunit y by virtue of its creation pursuant to Article XVI, Section 59. Even if K amani and Pillsbury

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

Amendment immunit

y simply because they are created under a particular state law. While P illsbury

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 immunit y. Our decisions clearly forbid such a result. S ee, e.g.

, Jacintoport

, 762 F.2d at 439-

40. Moreover, even though Y sleta affirmed t he 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 immunit y, such a test is contrary to our decisions requiring the application of the arm-ofthe-state analysis and to the principle that comparisons or ana lo gies bet ween like entities cannot

substitute for a proper analysis of the particular entity claiming immunit y. S ee, 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 of the individual

factors of the arm-of-the-state analysis, we will not address such application. While Appellant argues

in its reply brie f t hat Appellee’s defense of the district court’s application of the factors is

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

we will not construe Appellant’s argument as such.

III.

Based on the reasons stated above, we AFFIRM the district court’s order denying Appellant’s9

motion to dismiss on Eleventh Amendment grounds.