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, 354 F. App'x 901

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. 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. 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]b-sent 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, 113 S.Ct. 684, 121 L.Ed.2d 605 (1993) (quoting Welch v. Tex. Dep’t of Highways & Pub.

Transp., 483 U.S. 468, 480, 107 S.Ct. 2941, 97 L.Ed.2d 389 (1987)); Edelman v. Jordan, 415 U.S. 651, 663, 94 S.Ct. 1347, 39 L.Ed.2d 662 (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 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, 28 S.Ct. 441, 52 L.Ed. 714 (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, 113 S.Ct. 684 (citing Cory v. White, 457 U.S. 85, 90-91, 102 S.Ct. 2325, 72 L.Ed.2d 694 (1982)).

Second, Ex Parte Young only applies to suits for prospective relief against state officials; it “has no application in suits against ... States and then-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, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984))); Quern v. Jordan, 440 U.S. 332, 341, 99 S.Ct. 1139, 59 L.Ed.2d 358 (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. 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. . This appeal only concerns the motions to dismiss filed by Texas and TDCJ.