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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-20020

CECIL C. COX, Individually and as Representative of the Estate of Larry

Louis Cox; ROBERT EARL COX, 

Plaintiffs - Appellees

v.

STATE OF TEXAS; TEXAS DEPARTMENT OF CRIMINAL JUSTICE, 

Defendants - Appellants

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:08-cv-02758

Before STEWART, DENNIS, and HAYNES, Circuit Judges.

PER CURIAM:*

The State of Texas and the Texas Department of Criminal Justice

(“TDCJ”) appeal from the district court’s denial of their motions to dismiss,

which were based on the Eleventh Amendment and sovereign immunity. We

REVERSE and REMAND. 

United States Court of Appeals

Fifth Circuit

F I L E D

December 3, 2009

Charles R. Fulbruge III

Clerk
No. 09-20020

 This appeal only concerns the motions to dismiss filed by Texas and TDCJ. 

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I. FACTS AND PROCEDURAL HISTORY

Appellees brought this suit, seeking both monetary and injunctive relief

under 42 U.S.C. § 1983 and state law, against numerous defendants, including

Texas and TDCJ. Appellees allege that Texas and TDCJ, among others, are

liable for the death of Larry Louis Cox, a former inmate of TDCJ. Texas and

TDCJ moved to dismiss Appellees’ claims against them on the basis of the

Eleventh Amendment and sovereign immunity. The district court denied their

motions. This interlocutory appeal followed. 

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II. DISCUSSION

We have jurisdiction over this appeal because the “denial of [a] motion to

dismiss . . . on the grounds of eleventh amendment immunity is a final decision

appealable under 28 U.S.C § 1291.” Loya v. Tex. Dep’t of Corrs., 878 F.2d 860,

861 (5th Cir. 1989) (citing ENG v. Coughlin, 858 F.2d 889, 894 (2d Cir. 1988)).

“We review Eleventh Amendment immunity determinations, like other questions

of subject matter jurisdiction, de novo as a question of law.” United States v.

Tex. Tech. Univ., 171 F.3d 279, 288 (5th Cir. 1999). 

Under the Eleventh Amendment, “[a]bsent waiver, neither a State nor

agencies acting under its control may ‘be subject to suit in federal court.’” P.R.

Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144 (1993)

(quoting Welch v. Tex. Dep’t of Highways & Pub. Transp., 483 U.S. 468, 480

(1987)); Edelman v. Jordan, 415 U.S. 651, 663 (1974). We have previously held

that TDCJ is a state agency that enjoys immunity from suit in federal court.

Harris v. Angelina County, Tex., 31 F.3d 331, 338 n.7 (5th Cir. 1994) (“Under the

current state of the law, the TDCJ is deemed an instrumentality of the state

operating as its alter ego in carrying out a public function of the state, and is
No. 09-20020

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immune from suit under the Eleventh Amendment.”); Aguilar v. Tex. Dep’t of

Criminal Justice, 160 F.3d 1052, 1054 (5th Cir. 1998). 

Appellees, citing Ex Parte Young, 209 U.S. 123 (1908), assert that the

Eleventh Amendment does not apply to their claims because they are seeking

prospective injunctive relief against Texas and TDCJ. Appellees’ attempt to

avoid the Eleventh Amendment on this basis is mistaken for two reasons. First,

Eleventh Amendment immunity applies to all suits brought against “States and

their agencies . . . regardless of the relief sought.” P.R. Aqueduct & Sewer Auth.,

506 U.S. at 146 (citing Cory v. White, 457 U.S. 85, 90-91 (1982)). Second, Ex

Parte Young only applies to suits for prospective relief against state officials; it

“has no application in suits against . . . States and their agencies.” Id.; Cox v.

City of Dallas, Tex., 256 F.3d 281, 307 (5th Cir. 2001) (“Ex parte Young held that

the Eleventh Amendment does not bar a suit against a state official who is

alleged to be acting in violation of federal law.”). 

Accordingly, Appellees’ state law and § 1983 claims are barred unless

Texas or TDCJ has waived its immunity. See Harris, 31 F.3d at 338 n.7 (“State

law claims against the State defendants . . . are also barred by the Eleventh

Amendment.” (citing Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89,

102-103, 124-26 (1984))); Quern v. Jordan, 440 U.S. 332, 341 (1979) (stating that

§ 1983 does not “override the traditional sovereign immunity of the States”).

Neither Texas nor TDCJ has waived its immunity; therefore, Appellees’ claims

against them are barred by the Eleventh Amendment. 

III. CONCLUSION

For the foregoing reasons, we REVERSE the district court’s orders denying

the State of Texas’s and Texas Department of Criminal Justice’s motions to

dismiss, and we REMAND to the district court to enter an order granting the

motions and dismissing these defendants.