United States Court of Appeals Fifth Circuit F I L E D REVISED JANUARY 13, 2005 August 11, 2004 IN THE UNITED STATES COURT OF APPEALS Charles R. Fulbruge III FOR THE FIFTH CIRCUIT Clerk _____________________

No. 03-50608 _____________________

CHRISTY MCCARTHY, By and through her next friend Jamie Travis; TODD GORDON, By and through his next friend Trisha Gordon; ALLISON PRATT, By and through her next friend Paula Pratt; GAIL TRUMAN, By and through her next friend Ken Truman; JIM FLOYD, JR, By and through his next friend Jim Floyd, Sr; SAM LINDSAY, By and through his next friend Betty Lindsay; OSHEA BROOKS; JOE RAY COMACHO; MICHA CHASTAIN, By and through his next friend Lori Chastain; AL, By and through his next friend LL; ARC OF TEXAS, On behalf of its members and for those similarly situated; SUE ANN ORTIZ; PATRICK SOSTACK and SCOTT SOSTACK, By and through their parents and next friends Gary and Lisa Sostack; SHYAN FOROUGH, By and through his parents and next friends Reza and Arzu Forough; DAVID ZWEIFEL, By and through his parents and next friends Linda and Leroy Zweifel; ASHTON BOWLEN, By and through her mother and next friend Patricia Bowlen; TYLER BLANCHARD, By and through his mother and next friend Faith Blanchard; GARRETT GILLARD, By and through his mother and next friend Keeya Gillard; KAMERON LANE, By and through his mother and next friend Angie Lane; MADISON POLK, By and through her father and next friend John Polk; PAIGE SMITH, By and through her mother and next friend Gretta Smith

Plaintiffs - Appellees

v.

ALBERT HAWKINS, Etc.; ET AL

Defendants

ALBERT HAWKINS, In his official capacity as Commissioner of the Texas Health and Human Services Commission; KAREN F HALE, In her official capacity as Commissioner of the Texas Department of Mental Health & Mental Retardation; JAMES R HINE, In his official capacity as Commissioner of the Texas Department of Human Services

Defendants - Appellants --------------------- Appeal from the United States District Court for the Western District of Texas, Austin ---------------------

ON PETITION FOR REHEARING EN BANC

(Opinion 8/11/04, 5 Cir., __________, ________ F.3d __________)

Before KING, Chief Judge, and REAVLEY and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:

( ) Treating the Petition for Rehearing En Banc as a Petition for Panel Rehearing, the Petition for Panel Rehearing is DENIED. No member of the panel nor judge in regular active service of the court having requested that the court be polled on Rehearing En Banc (FED. R. APP. P. and 5TH CIR. R. 35), the Petition for Rehearing En Banc is DENIED.

( X ) Treating the Petition for Rehearing En Banc as a Petition for Panel Rehearing, the Petition for Panel Rehearing is DENIED. The court having been polled at the request of one of the members of the court and a majority of the judges who are in regular active service not having voted in favor (FED. R. APP. P. and 5TH CIR. R. 35), the Petition for Rehearing En Banc is DENIED.

ENTERED FOR THE COURT:

/s/Carolyn Dineen King United States Circuit Judge JERRY E. SMITH, Circuit Judge, with whom JOLLY, JONES, BARKSDALE,

GARZA, CLEMENT, and PICKERING, Circuit Judges, join, dissenting from

the denial of rehearing en banc:

Because the panel majority has given insufficient attention

to this court’s duty to enforce the Eleventh Amendment to the

United States Constitution, I respectfully dissent. In the main,

my reasons are the same as those that are cogently set forth in

Judge Garza’s dissent, 318 F.3d at 417-21, in which he shows that

“a challenge to the constitutionality of a statute underlying a

[suit under Ex parte Young,

(1908),] is a proper

subject of an Eleventh Amendment immunity analysis and that

consideration of such a challenge is within the scope of an

interlocutory appeal from the denial of a claim of Eleventh

Amendment immunity,” id. at 421.

If a state is sued pursuant to an unconstitutional statute,

the Eleventh Amendment grants it immunity from suit, not just im-

munity from ultimate liability. Logically, the constitutional

question must be addressed on interlocutory appeal if that

immunity is to be properly recognized.

This is the same methodology the Supreme Court has required

in qualified immunity appeals. In Siegert v. Gilley,

(1991), the Court held that the first step in a determination

of qualified immunity is whether there was a “violation of any

constitutional right at all.”

. The Court emphasized that the immunity at issue was an “immunity from suit rather than

a mere defense to liability.”

(citation and internal

quotation marks omitted).

Immunity from suit applies equally in the Eleventh Amendment

context. “One of the purposes of immunity, absolute or

qualified, is to spare a defendant not only unwarranted

liability, but unwarranted demands customarily imposed upon those

defending a long drawn out lawsuit.”

The panel majority

concluded not only that it is undesirable for a court to review

the constitutional issue on interlocutory appeal, but that a

court of appeals has no jurisdiction to do so. That decision is

extreme and flies in the face of the undeniable logic of Siegert

and its progeny.

The Supreme Court has emphasized, as well, that “Eleventh

Amendment immunity represents a real limitation on a federal

court’s federal question jurisdiction.” Idaho v. Coeur d’Alene

Tribe,

, 270 (1997). At least to the extent that the

issue is jurisdictional, it should be examined at the first

available opportunity. Thus, in the panel majority’s

jurisdictional analysis, its thrust should be not on the

jurisdiction of a court of appeals to decide the constitutional

question, but on whether the jurisdictional characteristics of

Eleventh Amendment immunity require us to make the constitutional

query on interlocutory appeal in order to give full, intended

4 force to the amendment.

It may be argued, as does the panel majority, that the fore-

going analysis is undermined by the language the panel majority

relies on from Verizon Md., Inc. v. Pub. Serv. Comm’n,

(2002). Even if Verizon is to be read as the panel majority

interprets it, that reading must be reconciled with the

overriding concerns underlying our and the Supreme Court’s

immunity methodology. Because the panel majority’s approach

calls into question this court’s Eleventh Amendment immunity

jurisprudence, the issue is enbancworthy, and the court’s failure

to grant en banc review is error. I therefore respectfully

dissent.

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