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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 00-10361
_______________
CHARLES ETTA WILLIAMS,
Plaintiff-Appellant,
VERSUS
DALLAS AREA RAPID TRANSIT,
Defendant-Appellee.
_________________________
Appeal from the United States District Court
for the Northern District of Texas
_________________________
February 22, 2001
Before POLITZ, SMITH, and PARKER,
DART otherwise were entitled to such
Circuit Judges.
immunity, it effectively waived it. Because we
agree that DART is not an arm of the state, we
JERRY E. SMITH, Circuit Judge:
do not reach waiver. We reverse the dismissal
and remand for further proceedings.
Charles Etta Williams appeals the dismissal
of her suit against Dallas Area Rapid Transit
I.
("DART") under the Age Discrimination in
DART is a regional transportation authority
Employment Act ("ADEA"), 29 U.S.C. § 621
organized under TEX. TRANSP. CODE ANN. ch.
et seq., arguing that the district court erred in
452. Williams, a former DART employee, was
finding DART immune from suit under the
released as part of a reduction-in-force
Eleventh Amendment. She contends both that
program. Although DART allegedly found al-
DART is not an arm of the state for purposes
ternative employment positions for younger,
of the Eleventh Amendment and that, even if
lesser-qualified employees, it offered no such

position to Williams, who sued, asserting a
(5th Cir. 1996) (quotation marks omitted).
claim for wrongful termination in violation of
Moreover, "a plaintiff cannot avoid the
the ADEA. After the parties conducted
sovereign immunity bar by suing a state agency
discovery, the Supreme Court issued Kimel v.
or an arm of the State rather than the State
Fla. Bd. of Regents, 528 U.S. 62, 82-83
itself." Id.
(2000), holding that, because the ADEA is not
a proper exercise of Congress's power under
When confronted with a governmental en-
the Fourteenth Amendment, the statute cannot
tity asserting Eleventh Amendment immunity
abrogate a state's sovereign immunity without
as an arm of the state, we apply the test
an express waiver by the state.
established in Clark v. Tarrant County, 798
F.2d 736 (5th Cir. 1986). The district court
Shortly thereafter, DART moved for
failed to analyze DART's asserted immunity
dismissal under FED. R. CIV. P. 12(b)(6), or al-
under the Clark framework, instead relying on
ternatively, for judgment on the pleadings un-
three cases1 for the proposition that DART is
der rule 12(c). Concluding that judgment was
not proper under either rule, the court
nonetheless dismissed sua sponte under rule
1 Anderson v. DART, Civ. Ac. No. 3:97-CV-
12(h)(3) for lack of subject matter jurisdiction,
1834-BC, 1998 WL 686782 (N.D. Tex. Sept. 29,
holding that DART, because it had not waived
1998), aff'd, 180 F.3d 265 (5th Cir. 1999) (per
its sovereign immunity, was not amenable to
curiam) (unpublished), cert. denied, 528 U.S. 1062
suit in federal court under the ADEA.
(1999); Tolbert v. Vasquez, Civ. Ac. No. 3:93-CV-
1468-X, 1998 U.S. Dist. LEXIS 17616 (N.D. Tex.
II.
Mar. 27, 1998), aff'd, 163 F.3d 1355 (5th Cir.
1998) (per curiam) (unpublished); Davis v. Mathis,
The district court held, as a matter of law,
846 S.W.2d 84 (Tex. AppSSDallas 1992, writ
that because "DART is a governmental unit or
denied). These cases are neither binding nor
instrumentality of the state of Texas, . . . it is
persuasive, because none properly examined the
entitled to assert Eleventh Amendment immu-
issue of Eleventh Amendment immunity. See
nity" and that because DART had not waived
Young v. DART, Civ. Ac. No. 3:95-CV-2596-X,
that immunity, Williams's ADEA claim failed
1999 U.S. Dist. LEXIS 4470, at *3 (N.D. Tex.
for lack of subject matter jurisdiction.
Mar. 24, 1999) (declining to follow Anderson and
Williams contests both that DART is entitled
Tolbert because "neither case delivers a thoughtful
to Eleventh Amendment immunity and that it
and/or detailed argument" with respect to Eleventh
did not effectively waive immunity. When
Amendment immunity, and ordering the parties to
addressing a dismissal for lack of subject
brief the issue under the Clark framework).
matter jurisdiction, we review application of
law de novo and disputed findings of fact for
Davis, 846 S.W.2d at 87, held merely that
clear error. See Williamson v. Tucker, 645
DART "[a]s a governmental unit," was entitled to
the protections of the Texas Tort Claims Act
F.2d 404, 413 (5th Cir. May 1981).
("TTCA"), Tex. CIV. PRAC. & REM. CODE ch.
101. T hat holding is not probative for our
"The Eleventh Amendment . . . bars suits in
purposes, because the TTCA defines
federal court by citizens of a state against their
"governmental unit" as
own state or a state agency or department."
Richardson v. S. Univ., 118 F.3d 450, 452
A) this state and all the several agencies of
(continued...)
2

indeed a state agency and therefore is entitled
to sovereign immunity. Although all three
1(...continued)
cases upheld DART's immunity from suit, they
government that collectively constitute
are neither binding nor persuasive in this
the government of this state, including
context. The court erred in failing properly to
other agencies bearing different
analyze, under Clark, DART's amenability to
designations, and all departments,
suit.
bureaus, boards, commissions, offices,
agencies, councils, and courts;
A proper inquiry under Clark considers six
factors:
(B) a political subdivision of this state,
including any city, county, school dis-
(1) whether the state statutes and case
trict, junior college district, levee im-
law characterize the agency as an
provement district, drainage district, ir-
rigation district, water improvement
arm of the state;
district, water control and improvement
district, water control and preservation
(2) the source of funds for the entity;
district, freshwater supply district,
navigation district, conservation and
(3) the degree of local autonomy the
reclamation district, soil conservation
entity enjoys;
district, communication district, public
health district, and river authority;
(4) whether the entity is concerned pri-
marily with local, as opposed to
(C) an emergency service organization; and
statewide, problems;
(D) any other institution, agency, or organ
of government the status and authority
of which are derived from the
1(...continued)
Constitution of Texas or from laws
Anderson and Tolbert held that DART, as a
passed by the legislature under the
"political subdivision of the state" is not a "person"
constitution.
within the meaning of 42 U.S.C. §§ 1981, 1983.
See Anderson v. DART, 1998 WL 686782 at *7;
TEX. CIV. PRAC. & REM. CODE § 101.001. The
Tolbert, 1998 LEXIS 17616, at *19-20. Although
TTCA's definition of "governmental unit" is un-
it is not at all certain that "political subdivision,"
questionably broader than the term "arm of the
as used by those courts, is coextensive with "arm
state," as used for purposes of the Eleventh
of the state," as used in analyzing Eleventh Amend-
Amendment, in that it includes cities, counties,
ment immunity, to the extent that the two terms are
school boards, and other governmental entities that
interchangeable, the district courts in Anderson v.
are not entitled to Eleventh Amendment immunity.
DART and Tolbert erred in failing to analyze
See, e.g., Mt. Healthy City Sch. Dist. Bd. of Educ.
DART under the Clark framework, relying instead
v. Doyle, 429 U.S. 274, 280-81 (1977) ("[A] local
on the Davis court's characterization of DART.
school board such as petitioner is more like a
Moreover, while the district court in Anderson v.
county or city than it is like an arm of the State.
DART did find DART immune from suit under the
We therefore hold that it was not entitled to assert
Eleventh Amendment, that finding is merely an
any Eleventh Amendment immunity from suit in
erroneous dictum, because the court already had
the federal courts.").
decided the case on the § 1983 issue. See
(continued...)
Anderson v. DART, 1998 WL 686782, at *7.
3

(5) whether the entity has authority to
DART as a "governmental unit" is not
sue and be sued in its own name;
probative of DART's status for Eleventh
and
Amendment purposes, however. See supra
note 1.
(6) whether the entity has the right to
hold and use property.
On the other hand, Texas statute defines
"state government" as "an agency, board,
Anderson v. Red Riv. Waterway Comm'n, 231
commission, department, or office . . . that:
F.3d 211, 214 (5th Cir. 2000). Although none
(A) was created by the constitution or a
of the six factors is dispositive,2 some are more
statute of this state; and (B) has statewide
important than others: The secondSSthe
jurisdiction." TEX. CIV. PRAC. & REM. CODE
source of fundsSSis the most important, while
§ 101.001(5).3 Thus, the controlling factor in
the fifth and sixthSSwhether the agency has
analyzing DART's status as a "state agency"
authority to enter into litigation and hold prop-
under the TTCA is whether it has statewide
ertySSare less so. See Hudson, 174 F.3d at
jurisdiction.
681-82. "Rather than forming a precise test,
[the Clark] factors help us balance the equities
In its answer, DART conceded that "all of
and determine as a general matter `whether the
suit is in reality a suit against the state itself.'"
Id. (quoting Laje v. R.E. Thomason Gen.
3 DART contends that the characterization of §
Hosp., 665 F.2d 724, 727 (5th Cir. 1982)).
101.001(5) is not applicable in the Eleventh
Amendment context, because § 101.001's
A proper Clark analysis compels the
definitions are limited by their terms to chapter
101, which codified the TTCA, which DART
conclusion that DART is not an arm of the
argues, deals only with governmental entities'
state for purposes of the Eleventh
amenability to suit in state courts, ignoring any
Amendment. The first factorSS"whether the
federal immunity. Section 101.025(a) states that
state statutes and case law characterize the
"[s]overeign immunity to suit is waived and
agency as an arm of the state"SSweighs
abolished to the extent of liability created by this
against immunity, if anything. Neither party
chapter," however, plainly contemplatingSSand by
can point to definitive authority establishing
implication, leaving intactSSthe state's immunity
DART's status under Texas law. As DART
under the Eleventh Amendment.
points out, it is an "authority" under Texas
law, and as such, is a "governmental unit under
To the extent the statute can be considered am-
Chapter 101, Civil Practice and Remedies
biguous, the Revisor's Note to that section is in-
Code . . . ." TEX. TRANSP. CODE ANN.
structive: "Only the state and its agencies have
§ 452.052. The statutory characterization of
sovereign immunity. The revised law omits the
phrase `with reference to units of government' to
avoid the implication that sovereign immunity
applies to local governmental units." Moreover,
2 Importantly, neither the state's approach to the
DART's abandonment of the TTCA strikes us as
issue of sovereign immunity nor the state's
peculiar, given its reliance on Anderson v. DART,
characterization of the entity in question controls
Tolbert, and Davis, all of which (improperly) con-
our inquiry. See Hudson v. City of New Orleans,
strued the TTCA in finding DART immune from
174 F.3d 677, 684-85 (5th Cir.), cert. denied, 528
federal suit as a "governmental unit." See supra
U.S. 1004 (1999).
note 1.
4

its operations and actions take place within the
registered by the state comptroller,5
counties encompassed in the Northern District
butSSimportantlySSthe state does not
of Texas." Nowhere does DART assert that it
guarantee the bonds. Moreover, although
does have statewide jurisdiction. Thus, at
DART is authorized to pledge its tax and
least for purposes of the TTCA, DART is not
operating revenues or mortgage its assets to
a state agency. Admittedly, Texas law is not
secure the bonds,6 DART can point to no
unambiguous with respect to DART's status,
statute indicating that the state would back the
but to the extent it favors either party, the first
bonds with its full faith and credit. We find
factor weighs against characterizing DART as
nothing that we can interpret as indicating that
an arm of the state.
the State of Texas funds or guarantees
DART's bond obligations.
The second factor in the Clark inquirySSthe
source of the funds for the governmental
DART also argues that the characteristics
entitySSis the most important one. See
of its sales and use tax render the tax a source
Hudson, 174 F.3d at 687. Although we also
of state funding. This argument proves too
consider the source of general operating funds
much, however. While it is true that DART's
for the entity, "because an important goal of
sales and use tax is administered by the state
the eleventh amendment is the protection of
comptroller and passes through the state treas-
states' treasuries, the most significant factor in
ury before being rebated to DART, municipal
assessing an entity's status is whether a
taxes in Texas are administered in the same
judgment against it will be paid with state
way.7 Nonetheless, it is undisputed that
funds." Richardson, 118 F.3d at 455 (quoting
municipalities are not arms of the state for
McDonald v. Bd. of Miss. Levee Comm'rs,
purposes of the Eleventh Amendment. No.
832 F.2d 901, 907 (5th Cir. 1987)). It is
99-41444, Evans v. City of Bishop, 2000 U.S.
undisputed that DART receives funding from
App. LEXIS 34479, at *5-*7 (5th Cir. Dec.
several sources, including passenger fares,
11, 2000) (per curiam). Moreover, except for
bond revenues, and local sales and use tax
the mere administration of the tax by the state,
revenues,4 but DART concedes on appeal that
there is nothing to suggest that DART's sales
it receives no appropriated funds from the
and use tax is anything other than the
state of Texas. It does contend, however, that
collection of local funds authorized by a local
its authorized use of bond and tax revenues
election to accomplish a local objective.
constitutes state funding. We disagree.
Finally, DART argues that, if it were unable
DART is authorized by state statute to is-
sue bonds for capital improvement projects;
we cannot, however, infer merely from such
5 See id. § 452.355.
authorization that the state actually provides
6
funding to DART. The bonds must be
See id. § 452.357.
approved by the state attorney general and
7 Compare TEX. TAX CODE ANN. §§ 321.301-
.302, 321.306, 321.501-.505 (administration pro-
visions for municipal sales and use tax), with id. §§
4 See TEX. TRANSP. CODE ANN. §§ 452.055
322.201-.203, 322.301-.305 (administration
(grants), 452.061 (fares), 452.352 (bonds), 452.-
provisions for special purpose sales and use tax).
401 (sales and use tax).
5

to pay a judgment from its own funds, it could
executive committee,9 which consists of
seek additional funding from the legislature.
members appointed by the municipalities
DART does not contend that the legislature
served by DART. See id. §§ 452.502, 452.-
would be obligated to provide the additional
562, 452.572. Thus, the day-to-day
funding, however, and we do not consider "a
operations of DART fall under purely local
state's voluntary, after-the-fact payment" of a
control. Moreover, any municipality served by
judgment to be a liability against the state's
DART may hold an election to withdraw from
treasury. Hudson, 174 F.3d at 689. There is
DART if it chooses to do so. See id. §
nothingSSeither in the record or of which we
452.651. In this way, the localities also
can take judicial noticeSSindicating either that
control DART's ultimate disposition. While
DART receives state funding as a general
there is some state oversight of DART's
matter or that a judgment against it would be
operations, it enjoys considerable local
satisfied out of the state treasury.
autonomy; this factor therefore weighs slightly
against Eleventh Amendment immunity, if
The third factor is the degree of local au-
anything.
tonomy. DART argues that this factor weighs
in its favor, because it is subject to the Texas
The fourth factor looks at whether DART
Sunset Act, TEX. GOV'T CODE. ANN. ch. 325.
is concerned primarily with local or statewide
That fact alone does not dispose of the issue:
problems. DART concedes that its authority
The Sunset Act deals with the orderly closure
is limited to the Dallas-Forth Worth region.
of obsolete state agencies, not the oversight of
Although there is some authority for viewing
agencies' daily operations. See id. § 325.008
regional entities merely as local solutions to
(detailing the duties of the Sunset Advisory
statewide problems,10 the fourth factor
Commission). Moreover, DART must report
properly centers on "whether the entity acts
to the Sunset Advisory Commission only once
for the benefit and welfare of the state as a
every twelve years. See TEX. TRANSP. CODE
whole or for the special advantage of local
ANN. § 452.453.
inhabitants." Pendergrass v. Greater New
DART argues further that, because it is
subject to fiscal audits every year and
9 See id. § 452.053; see also id. §§ 452.101-13
performance audits every fourth year,8 it falls
(empowering the executive committee, inter alia,
under state control. Like the Sunset Act, the
to create a budget, invest funds, establish a security
audit requirements are some evidence of state
force, and appoint auditors and attorneys).
oversight, but they are not dispositive with
10
respect to the issue of local control.
Cf. Clark, 798 F.2d at 745. Clark addressed
the state probation system, concluding that the
On the other side of the scale, the
relevant statute "was enacted to address a
statewide problem and to put control of
responsibility for the "management, operation,
probationers in the hands of state officers.
and control" of DART is vested in an
Dividing the responsibilities into judicial districts
is merely an administrative tool for handling a
statewide, state program." Id. (citation omitted).
In contrast, DART is not an administrative division
8 See TEX. TRANSP. CODE ANN. §§ 452.451,
of a statewide transportation systemSSit is an
452.454.
entity unto itself.
6

Orleans Expressway Comm'n, 144 F.3d 342,
347 (5th Cir. 1998) (citing Jacintoport Corp.
v. Greater Baton Rouge Port Comm'n, 762
F.2d 435, 443 (5th Cir. 1985)). DART plainly
acts for the benefit of the residents of Dallas,
Fort Worth, and the surrounding communities,
as distinguished from that of the state as a
whole; thus, the fourth factor also cuts against
DART.
The fifth and sixth factors weigh in favor of
Williams's contention that DART is not an
arm of the state. DART has statutory
authority both to hold and use property and to
sue and be sued. See TEX. TRANSP. CODE.
ANN. §§ 452.054(b) & (d). Such abilities
favor categorization of DART as an
independent entity, not an arm of the state.
See Hudson, 174 F.3d at 691.
Taken as a whole, the Clark analysis
compel the conclusion that DART is not
immune from Williams's claim. Though some
of the factors may be indeterminate, none
weighs strongly in DART's favor. Moreover,
the most important second factor weighs
against considering DART an arm of the state.
The district court therefore erred in finding
DART immune from suit under the ADEA.
We REVERSE the dismissal and REMAND
for further proceedings.
7