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 Civil Action No. 3:03-CV-1726-M and Civil Action No. 3:07-CV-43-M. 

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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

IBN ZAKARIYA MUHAMMAD, §

§

Plaintiff, §

§

v. § Civil Action No. 3:03-CV-1726-M

§

DALLAS COUNTY COMMUNITY §

SUPERVISION AND CORRECTIONS §

DEPARTMENT §

§

Defendant. §

FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS

OF THE UNITED STATES MAGISTRATE JUDGE

Pursuant to the District Court’s Standing Order of Reference, filed January 9, 2007, this case

was referred to this Court for pretrial management, including the determination of non-dispositive

motions and issuance of findings of fact and recommendations to the District Court on dispositive

motions. Before the Court is Defendant’s Motion to Dismiss, filed April 19, 2007.

Having reviewed the pertinent filings above and the law applicable to the issues raised, the

Court recommends that the defendant’s motion be GRANTED. 

I. BACKGROUND

This case represents the consolidation of two separate actions.1

 In the first action, filed on

November 31, 2003, Plaintiff brought claims of discrimination, retaliatory action, Civil Rights

violations, and deprivation of employment opportunity under Title VII of the Civil Rights Act of

1964, as amended, 42 U.S.C. § 2000e et seq., and 42 U.S.C. §§ 1981and 1988, against Defendant,
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Dallas County Community Supervision and Corrections Department (“DCCSCD”). (Pl.’s First

Comp. at 1, 3-4). On November 29, 2004, the District Court granted the defendant’s (DCCSCD)

motion to dismiss the §§ 1981 and 1988 claims on the basis of Eleventh Amendment immunity.

Memorandum Opinion and Order, Muhammad v. Dallas County Cmty. Supervision and Corr. Dept.

(DCCSCD), No. 3:03-CV-1726-H, at 8 (N.D. Tex., issued Nov. 29, 2004). The District Court, sua

sponte, subsequently dismissed Plaintiff’s remaining Title VII claim, and as this represented the last

live claim, dismissed the full lawsuit. Muhammad v. Dallas County Cmty. Supervision and Corr.

Dept. (DCCSCD), 2005 WL 742899 (N.D. Tex. March 31, 2005). Plaintiff appealed the dismissal,

and on March 14, 2007, the Fifth Circuit reversed and remanded on the dismissal of the Title VII

claim; the Fifth Circuit did, however, affirm the dismissal of the §§ 1981 and 1988 claims.

Muhammad v. Dallas County Cmty. Supervision and Corr. Dept., 479 F.3d 377 (5th. Cir. 2007).

On January 9, 2007, Plaintiff filed a second complaint against Defendant seeking relief under

the same federal statutes, including §§ 1981 and 1988, based on actions which occurred after the

dismissal of the first suit. (Pl.’s Second Comp., at 1, 3-4). Plaintiff also alleged discrimination

based on age and religion in his second complaint. Id. at 3.

On March 22, 2007, following the Fifth Circuit’s decision to reverse and remand Plaintiff’s

Title VII claim in the first suit, these two suits were consolidated. On April 19, 2007, the defendant

moved to dismiss Plaintiff’s §§ 1981 and 1988 claims in the second suit. Plaintiff filed a response

in opposition on May 9, 2007, to which Defendant replied on May 24, 2007. The issues have been

fully briefed and are ripe for consideration.

II. STANDARD OF REVIEW

Defendant moves to dismiss Plaintiff’s §§ 1981 and 1988 claims pursuant to FED.R.CIV. P.
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12(b)(1). (Def. Mot. at 1).

A motion to dismiss under Rule 12(b)(1) of the Federal Rules of Civil Procedure challenges

a federal court’s subject matter jurisdiction. See FED.R.CIV. P. 12(b)(1). Federal courts are courts

of limited jurisdiction; without jurisdiction conferred by statute, they lack the power to adjudicate

claims. See Stockman v. Fed. Election Comm’n, 138 F.3d 144, 151 (5th Cir. 1998). “When a Rule

12(b)(1) motion is filed in conjunction with other Rule 12 motions, the court should consider the

Rule 12(b)(1) jurisdictional attack before addressing any attack on the merits.” Ramming v. United

States, 281 F.3d 158, 161 (5th Cir. 2001) (citing Hitt v. City of Pasadena, 561 F.2d 606, 608 (5th

Cir. 1977) (per curiam)). Giving first consideration to rule 12(b)(1) motions “prevents a court

without jurisdiction from prematurely dismissing a case with prejudice.” Id. When the court

dismisses for lack of subject matter jurisdiction, that dismissal “is not a determination of the merits

and does not prevent the plaintiff from pursuing a claim in a court that does have proper

jurisdiction.” Id.

The Fifth Circuit recognizes a distinction between a “facial attack” and a “factual attack”

upon a complaint’s subject matter jurisdiction. Rodriguez v. Tex. Comm’n on the Arts, 992 F.Supp.

876, 878 (N.D. Tex. 1998). “A facial attack requires the court merely to decide if the plaintiff has

correctly alleged a basis for subject matter jurisdiction” by examining the allegations in the

complaint, which are presumed to be true. Id. (citation omitted). If the defendant supports the

motion with evidence, however, then the attack is “factual” and “no presumptive truthfulness

attaches to the plaintiff’s allegations, and the existence of disputed material facts will not preclude

the trial court from evaluating for itself the merits of jurisdictional claims.” Williamson v. Tucker,

645 F.2d 404, 413 (5th Cir. 1981). Regardless of the attack, “[t]he plaintiff constantly bears the
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burden of proof that jurisdiction does exist.” Rodriguez, 992 F.Supp. at 879 (“The burden of proof

for a Rule 12(b)(1) motion to dismiss is on the party asserting jurisdiction.”) (citations omitted). 

As neither party has attached evidence to support their contentions, this motion presents a

facial attack, and the allegations in the second complaint are presumed to be true.

III. ANALYSIS

Defendant asserts Eleventh Amendment immunity as an entity of the state and cites the

District Court’s determination in the first suit that Plaintiff’s §§ 1981 and 1988 against DCCSCD

were barred by such immunity. Relying on Clark v. Tarrant County, 798 F.2d 736 (5th Cir. 1986)

(holding that an adult probation department was an arm of the state within the meaning of the

Eleventh Amendment and that federal courts lacked subject matter over the plaintiff’s § 1983 claims

against it), the District Court found that DCCSCD was an arm of the State and was therefore entitled

to Eleventh Amendment immunity. Muhammad, No. 3:03-CV-1726-H, at 7-8.

Plaintiff responds that the District Court’s previous decision is not proscriptively applicable

because subsequent amendments to TEX. GOV’T CODE Chapter 76 (Vernon 2007) now make it

uncertain whether DCCSCD is an arm of the state. (Pl.’s Resp. at 1). Specifically, Plaintiff argues

that amendments to Chapter 76 leave the statute unclear as to “whether the defendant receives its

funding from the [s]tate, whether the defendant is controlled by the state, or whether defendant only

handles local issues.” Id. at 2. For these reasons, Plaintiff contends that full reliance on Clark is no

longer proper. Id. Plaintiff also contends that “the defendant has failed to demonstrate that it is an

arm of the state by providing any proof.” Id. at 1-2. Thus, the question for this Court is whether

DCCSCD is still entitled to Eleventh Amendment immunity in light of the 2005 Amendments to

Chapter 76.
2

 There does not seem to be any case law directly on point after 2005.

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Fifth Circuit case law on Eleventh Amendment immunity for state entities is wellestablished. In federal courts, § 1981 claims against a state entity are barred by the Eleventh

Amendment. Sessions v. Rusk State Hospital, 648 F.2d 1066, 1068 (5th Cir. 1981). In fact, Eleventh

Amendment immunity deprives courts of subject matter jurisdiction. United States v. Texas Tech

Univ., 171 F.3d 279, 285 n.9, 288 (5th. Cir. 1999). As the District Court originally noted, the

question of whether “DCCSCD is entitled to Eleventh Amendment immunity turns on its status as

an arm of the state.” Muhammad, No. 3:03-CV-1726-H, at 6. To make that determination, the Fifth

Circuit has traditionally considered six factors: 

“(1) whether state statutes and case law characterize the agency as an

arm of the state; (2) the source of funds for the entity; (3) the degree

of local autonomy the entity enjoys; (4) whether the entity is

concerned primarily with local, as opposed to statewide, problems;

(5) whether the entity has authority to sue and be sued in its own

name; and (6) whether the entity has the right to hold and use

property.”

Vogt v. Board of Comm'rs of the Orleans Levee Dist., 294 F.3d 684, 688 (5th Cir.), cert. denied, 537

U.S. 1088 (2002); see also, Clark, 798 F.2d at 744-45. 

The first inquiry is whether the statutes and case law still characterize DCCSCD as an arm

of the state.2

 Section 76.002 of the Texas Government Code requires state district judges to establish

community supervision and corrections departments and to “approve the department’s budget and

community justice plan.” TEX. GOV’T CODE § 76.002(a). This portion of § 76.002 was unaffected

by the 2005 Amendments. Id. Two changes were made to § 76.002 during 2005: (1) judges were

no longer required or permitted to employ personnel beyond hiring the director of the community

corrections department; and (2) judges were no longer entitled to participate in the direct
3

 In fact, DCCSCD can still accept funds from any source. TEX. GOV’T CODE § 76.010. State funds are

still allocated to DCCSCD and the state (through the district judges) must still approve any proposed budget. Id.

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management of the department. TEX.GOV’T CODE § 76.002. In addition, new oversight by the state

auditor was added “to examine and audit accounts, records, receipts, and expenditures of a

department.” TEX.GOV’T CODE § 76.004(g)(3). These changes indicate a more limited role for state

district judges in the managerial and operational aspects of these departments. However, they do

not overshadow the district judges’ ongoing responsibility for establishing the department,

approving its recurring budget and operational plans, and choosing the director of the department.

Accordingly, the Court finds that DCCSCD is still characterized as an arm of the state despite these

changes to the statute. 

The second inquiry under the six factor analysis concerns the source of funding for the entity

in question. See, Vogt, 294 F.3d at 689; Clark, 798 F.2d at 744. Here, Plaintiff claims that changes

to Chapter 76 now make DCCSCD’s source of funding unclear. (Pl.’s Resp. at 2). There were not,

however, any changes made to the statutory funding provisions in 2005 or thereafter.3 Compare,

TEX. GOV’T CODE § 76.007-10 (Vernon 2007) and, TEX. GOV’T CODE § 76.007-10 (Vernon 2005).

This factor thus provides no basis to question the District Court’s initial determination in this case

that Clark is directly applicable.

The third inquiry pertains to the degree of local autonomy enjoyed by DCCSCD. See Vogt,

294 F.3d at 689; Clark, 798 F.2d at 744. Here, Plaintiff argues that changes to Chapter 76 leave it

unclear whether DCCSCD is controlled by the state. (Pl.’s Resp. at 2). The balance between local

and state control has changed somewhat since the 2005 amendments to Chapter 76. For example,

the department is now vested with the power to “authorize expenditures of funds provided by the

division to the department for the purposes of providing facilities, equipment, and utilities for
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community corrections facilities or state jail felony facilities” subject to certain oversight provisions.

TEX. GOV’T CODE § 76.010(c). This marks a change from 2005, when district judges were vested

with that power. TEX. GOV’T CODE § 76.010(c) (Vernon 2005). In addition, any persons employed

under the current statute are employees “of the department and not of the judges or judicial district,”

which was not the law prior to 2005. Compare, TEX. GOV’T CODE § 76.004(b) (Vernon 2007) and,

TEX. GOV’T CODE § 76.004(b) (Vernon 2005). These changes, however, are relatively minor and

are militated against by new oversight from the state auditor. See, TEX.GOV’T CODE § 76.004(g)(3).

Thus, it appears that the Amendments from 2005 provide more local control of DCCSCD, but fall

well short of showing that DCCSCD is an autonomous local entity. As noted in Clark, the district

judges’ power to establish such entities in the first instance (which was unchanged by the 2005

Amendments) undermines any finding of local autonomy. See Clark, 798 F.2d at 744. 

The fourth, fifth, and sixth inquiries involve a determination of whether the entity in question

concerns itself with local as opposed to statewide concerns, can be sued in its own name, and can

hold property in its own name, respectively. See Vogt, 294 F.3d at 689; Clark, 798 F.2d at 744.

There are no changes to the applicable Code provisions that govern these three factors. Thus, there

is no reason to revisit the District’s Court previous determination of DCCSCD’s entitlement to

immunity on the basis of these unchanged factors.

Viewing all six factors in total, the Court finds that DCCSCD’s entitlement to Eleventh

Amendment immunity is unchanged by the 2005 Amendments to Chapter 76 of the Texas Code.

Accordingly, Plaintiff’s claims against the Defendant under 42 U.S.C. §§ 1981 and 1988 should be

dismissed for lack of jurisdiction. 
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IV. CONCLUSION

For the reasons stated above, the Court recommends that Defendant’s Motion for Dismiss

be GRANTED.

SO RECOMMENDED on this 8th day of August, 2007.

 ___________________________________

 IRMA CARRILLO RAMIREZ

 UNITED STATES MAGISTRATE JUDGE

INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

Pursuant to Title 28, United States Code, Section 636(b)(1), any party who desires to object

to these findings, conclusions and recommendation must file and serve written objections within ten

(10) days after being served with a copy. A party filing objections must specifically identify those

findings, conclusions or recommendation to which objections are being made. The District Court

need not consider frivolous, conclusory or general objections. A party’s failure to file such written

objections to these proposed findings, conclusions and recommendation shall bar that party from a

de novo determination by the District Court. See Thomas v. Arn, 474 U.S. 140, 150 (1985); Perales

v. Casillas, 950 F.2d 1066, 1070 (5th Cir. 1992). Additionally, any failure to file written objections

to the proposed findings, conclusions and recommendation within ten (10) days after being served

with a copy shall bar the aggrieved party from appealing the factual findings and legal conclusions

of the Magistrate Judge that are accepted by the District Court, except upon grounds of plain error.

Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428–29 (5th Cir. 1996) (en banc).

 ___________________________________

 IRMA CARRILLO RAMIREZ

 UNITED STATES MAGISTRATE JUDGE