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UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 95-50230
BETTYE WARNOCK,
Plaintiff - Appellant,
VERSUS
PECOS COUNTY, TEXAS; ALEX GONZALEZ,
Individually and in His Official Capacity as
Pecos County District Judge; BROCK, Individually
and in his official capacity as Pecos County District Judge,
Defendants - Appellees.
Appeal from the United States District Court
for the Western District of Texas
July 8, 1996
Before POLITZ, Chief Judge, GOODWIN1 and DUHÉ, Circuit Judges.
DUHÉ, Circuit Judge:
Plaintiff's § 1983 claims against two state district judges in
their individual and official capacities were dismissed with
prejudice pursuant to Rule 41(a)(2). We vacate the judgment of
dismissal, reverse in part and remand with instructions.
Ms. Warnock was appointed to a two year term as Pecos County
Auditor by Judges Alex R. Gonzalez and Brock Jones, judges of the
83rd and 112th Judicial Districts respectively, in accordance with
§ 84.002 of the Texas Local Government Code. Ms. Warnock was not
reappointed at the expiration of her term. She alleges that the
1Circuit Judge of the Ninth Circuit, sitting by designation.

non-renewal of her appointment was retaliation for reporting to
various authorities "numerous matters of public concern that
involved violations of laws and administrative regulations of the
State of Texas and of the policies and ordinances of Pecos County,
Texas."
Warnock seeks compensatory and punitive damages, reinstatement
and attorney's fees under 42 U.S.C. § 1983 for violation of her
First Amendment rights of freedom of speech, freedom of assembly,
and freedom of association. The judges moved to dismiss pursuant
to Rule 12(b)(6) of the Federal Rules of Civil Procedure based on
sovereign immunity and qualified immunity. The claims were
dismissed with prejudice.
Eleventh Amendment sovereign immunity deprives a federal court
of jurisdiction to hear a suit against a state. Pennhurst State
School and Hosp. v. Halderman, 465 U.S. 89, 100 (1984). A
dismissal for lack of jurisdiction will not be affirmed unless it
appears certain that the plaintiff cannot prove any set of facts in
support of her claim which would entitle her to relief. Hobbs v.
Hawkins, 968 F.2d 471, 475 (5th Cir. 1992).
Texas judges are entitled to Eleventh Amendment immunity for
claims asserted against them in their official capacity. Holloway
v. Walker, 765 F.2d 517, 519 (5th Cir.), cert. denied, 474 U.S.
1037 (1985). Plaintiff argues that Judges Gonzalez and Jones are
not entitled to sovereign immunity in this case because the
appointing of county auditor is an administrative act performed on
behalf of the County, not the State. Plaintiff's argument is
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unavailing. The Eleventh Amendment is invoked when "the state is
the real, substantial party in interest." Pennhurst, 465 U.S. at
101. The state is a real, substantial party in interest when the
judgment sought would expend itself on the state treasury or domain
or would restrain the state from acting or compel it to act. Id.
at 101 n.11. Plaintiff seeks relief that would be provided by the
state. The state, therefore, is the real, substantial party in
interest making sovereign immunity applicable to plaintiff's claims
against the judges in their official capacities.
Plaintiff's claim for prospective relief (reinstatement),
however, is not barred by sovereign immunity. The Eleventh
Amendment does not protect state officials from claims for
prospective relief when it is alleged that the state officials
acted in violation of federal law. Ex parte Young, 209 U.S. 123,
155-56 (1908); Edelman v. Jordan, 415 U.S. 651, 664 (1974); Brennan
v. Stewart, 834 F.2d 1248, 1252 (5th Cir. 1988). Plaintiff also
seeks attorney's fees from the judges. Claims for fees associated
with prospective relief and fees that may be awarded as costs are
not barred by the Eleventh Amendment. Hutto v. Finney, 437 U.S.
678, 692 (1978).
The district court dismissed Plaintiff's claims with prejudice
pursuant to Rule 41(a)(2) of the Federal Rules of Civil Procedure.
Because sovereign immunity deprives the court of jurisdiction, the
claims barred by sovereign immunity can be dismissed only under
Rule 12(b)(1) and not with prejudice. On remand the district court
is to dismiss those claims under Rule 12(b)(1) and is to give
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further consideration to the claims for reinstatement and
attorney's fees.
In response to the individual claims, the judges raised the
defense of qualified immunity. The district court dismissed the
complaint because it found the complaint did not meet the pleading
requirements of Mitchell v. Forsyth, 472 U.S. 511, 526 (1985).
After the district court rendered its judgment, we issued Schultea
v. Wood, 47 F.3d 1427 (5th Cir. 1995) which clarified the
procedures for addressing qualified immunity. Since the district
court did not have the benefit of that opinion, we vacate the
dismissal of the individual claims and remand the case for further
proceedings in light of Schultea.
We VACATE the judgment, REVERSE in part and REMAND with
instructions.
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