United States Court of Appeals

Fifth Circuit

FILED

August 25, 2005

Charles R. Fulbruge III

Clerk

In the

United States Court of Appeals

for the Fifth Circuit

_______________

m 02-11168

Summary Calendar

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JULIE DUNLOP ESPINOZA,

Plaintiff-Appellee,

VERSUS

TEXAS DEPARTMENT OF PUBLIC SAFETY; ET AL.,

Defendants,

TEXAS DEPARTMENT OF PUBLIC SAFETY,

Defendant-Appellant.

_________________________

Appeal from the United States District Court

for the Northern District of Texas

m 3:00-CV-1975-L

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2

Before DAVIS, SMITH, and DENNIS, 

Circuit Judges.

PER CURIAM:

*

Julie Espinoza sued the Texas Department

of Public Safety (“TDPS”) for alleged violations of title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12132, and

§ 504 of the Rehabilitation Act of 1973, 29

U.S.C. § 794(a). Based on intervening decisions from the Supreme Court and this court,1

Espinoza conceded that her ADA claim was

barred by sovereign immunity

2

but maintained

that her § 504 Rehabilitation Act claim for injunctive relief was not.

TDPS moved the district court to dismiss

the § 504 claim on the basis of state sovereign

immunity. Concluding that TDPS had waived

its immunity from suit under § 504 of the RehabilitationAct byaccepting federalfunds pursuant to 42 U.S.C. 2000d-7, the district court

denied the motion to dismiss, and TDPS took

this interlocutory appeal. 

During the pendency of this appeal, we decided Pace v. Bogalusa City Sch. Bd., 403

F.3d 272 (5th Cir. 2005) (en banc), which, as

TDPS has appropriately acknowledged in supplemental briefing, forecloses all but two of its

argumentsforreversing the denialofsovereign

immunity: (1) that despite accepting federal

funds conditioned on a waiver of immunity, it

does not have authority, as a matter of state

law, to waive immunity from suit in federal

court; and (2) that §§ 504 and 2000d-7 fail the

relatedness requirement set forth in South

Dakota v. Dole, 483 U.S. 203 (1987).

Although not addressed in Pace, those contentions are now foreclosed by in Miller v. Tex.

Tech Univ. Health Scis. Ctr., 2005 U.S. App.

LEXIS 17244 (5th Cir. Aug. 15, 2005) (en

banc).

Therefore, based on these precedents, we

AFFIRM the denial of TDPS’s motion to dismiss on the basis of state sovereign immunity,

and we REMAND this matter for further proceedings.

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published

and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

1

See Board of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356 (2001) (holding that title I of the

ADA did not validly abrogate state sovereign

immunity pursuant to Section Five of the Fourteenth Amendment); Reickenbacker v. Foster, 274

F.3d 974 (5th Cir. 2001) (holding that title II of the

ADA and § 504 theRehabilitation Act, which offer

protections almost identical to those of the ADA,

did not validly abrogate state sovereign immunity

pursuant to Section Five of the Fourteenth

Amendment). 

2 Thereafter, on leave from the district court,

Espinoza amended her complaint to assert an ADA

claim against the director of the TDPS in his

official capacity under Ex Parte Young, 209 U.S.

123 (1908), for which she sought prospective injunctive relief and attorney’s fees. No challenge to

this claim is presently before us.