1Circuit Judge of the Ninth Circuit, sitting by designation.

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 95-50230

BETTYE WARNOCK,

Plaintiff - Appellant,

VERSUS

PECOS COUNTY, TEXAS; ALEX GONZALEZ, 

Individually and in His Official Capacity as

Pecos County District Judge; BROCK, Individually

and in his official capacity as Pecos County District Judge,

Defendants - Appellees.

Appeal from the United States District Court

for the Western District of Texas

July 8, 1996

Before POLITZ, Chief Judge, GOODWIN1 and DUHÉ, Circuit Judges. 

DUHÉ, Circuit Judge:

Plaintiff’s § 1983 claims against two state district judges in

their individual and official capacities were dismissed with

prejudice pursuant to Rule 41(a)(2). We vacate the judgment of

dismissal, reverse in part and remand with instructions.

Ms. Warnock was appointed to a two year term as Pecos County

Auditor by Judges Alex R. Gonzalez and Brock Jones, judges of the

83rd and 112th Judicial Districts respectively, in accordance with

§ 84.002 of the Texas Local Government Code. Ms. Warnock was not

reappointed at the expiration of her term. She alleges that the
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non-renewal of her appointment was retaliation for reporting to

various authorities “numerous matters of public concern that

involved violations of laws and administrative regulations of the

State of Texas and of the policies and ordinances of Pecos County,

Texas.”

Warnock seeks compensatory and punitive damages, reinstatement

and attorney’s fees under 42 U.S.C. § 1983 for violation of her

First Amendment rights of freedom of speech, freedom of assembly,

and freedom of association. The judges moved to dismiss pursuant

to Rule 12(b)(6) of the Federal Rules of Civil Procedure based on

sovereign immunity and qualified immunity. The claims were

dismissed with prejudice.

Eleventh Amendment sovereign immunity deprives a federal court

of jurisdiction to hear a suit against a state. Pennhurst State

School and Hosp. v. Halderman, 465 U.S. 89, 100 (1984). A

dismissal for lack of jurisdiction will not be affirmed unless it

appears certain that the plaintiff cannot prove any set of facts in

support of her claim which would entitle her to relief. Hobbs v.

Hawkins, 968 F.2d 471, 475 (5th Cir. 1992). 

Texas judges are entitled to Eleventh Amendment immunity for

claims asserted against them in their official capacity. Holloway

v. Walker, 765 F.2d 517, 519 (5th Cir.), cert. denied, 474 U.S.

1037 (1985). Plaintiff argues that Judges Gonzalez and Jones are

not entitled to sovereign immunity in this case because the

appointing of county auditor is an administrative act performed on

behalf of the County, not the State. Plaintiff’s argument is
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unavailing. The Eleventh Amendment is invoked when “the state is

the real, substantial party in interest.” Pennhurst, 465 U.S. at

101. The state is a real, substantial party in interest when the

judgment sought would expend itself on the state treasury or domain

or would restrain the state from acting or compel it to act. Id.

at 101 n.11. Plaintiff seeks relief that would be provided by the

state. The state, therefore, is the real, substantial party in

interest making sovereign immunity applicable to plaintiff’s claims

against the judges in their official capacities. 

Plaintiff’s claim for prospective relief (reinstatement),

however, is not barred by sovereign immunity. The Eleventh

Amendment does not protect state officials from claims for

prospective relief when it is alleged that the state officials

acted in violation of federal law. Ex parte Young, 209 U.S. 123,

155-56 (1908); Edelman v. Jordan, 415 U.S. 651, 664 (1974); Brennan

v. Stewart, 834 F.2d 1248, 1252 (5th Cir. 1988). Plaintiff also

seeks attorney’s fees from the judges. Claims for fees associated

with prospective relief and fees that may be awarded as costs are

not barred by the Eleventh Amendment. Hutto v. Finney, 437 U.S.

678, 692 (1978).

The district court dismissed Plaintiff’s claims with prejudice

pursuant to Rule 41(a)(2) of the Federal Rules of Civil Procedure.

Because sovereign immunity deprives the court of jurisdiction, the

claims barred by sovereign immunity can be dismissed only under

Rule 12(b)(1) and not with prejudice. On remand the district court

is to dismiss those claims under Rule 12(b)(1) and is to give
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further consideration to the claims for reinstatement and

attorney’s fees. 

In response to the individual claims, the judges raised the

defense of qualified immunity. The district court dismissed the

complaint because it found the complaint did not meet the pleading

requirements of Mitchell v. Forsyth, 472 U.S. 511, 526 (1985).

After the district court rendered its judgment, we issued Schultea

v. Wood, 47 F.3d 1427 (5th Cir. 1995) which clarified the

procedures for addressing qualified immunity. Since the district

court did not have the benefit of that opinion, we vacate the

dismissal of the individual claims and remand the case for further

proceedings in light of Schultea. 

We VACATE the judgment, REVERSE in part and REMAND with

instructions.