The opinion
KENNETH R. CARR, Justice,
dissenting.
I respectfully disagree with the majority’s holding.
In Seminole Tribe v. Florida, 517 U.S. 44 , 116 S.Ct. 1114 , 134 L.Ed.2d 252 (1996), the Supreme Court articulated a two-part test for determining whether an act of Congress abrogates the states’ Eleventh Amendment immunity. The test asks (1) whether Congress has unequivocally declared an intent to abrogate a state’s immunity and (2) whether Congress has acted pursuant to a valid exercise of power. 1 517 U.S. at 55 , 116 S.Ct. at 1123 .
Under the second prong of Seminole, in order to provide remedial or preventative protections under section 5 of the Fourteenth Amendment, Congress must act in order to protect or remedy one of the stated purposes of the Fourteenth Amendment that is linked to a pattern of constitutional violations.
While the line between measures that remedy or prevent unconstitutional actions and measures that make a substantive change in the governing law is not easy to discern, and Congress must have wide latitude in determining where it lies, the distinction exists and must be observed. There must be a congruence and proportionality between the injury to be prevented or remedied and the *586 means adopted to that end. Lacking such a connection, legislation may become substantive in operation and effect. History and our case law support drawing the distinction, one apparent from the text of the Amendment.
City of Boerne v. Flores, 521 U.S. 507, 519-20 , 117 S.Ct. 2157, 2164 , 138 L.Ed.2d 624 , 74 Fair Empl. Prac. Cas. (BNA) 62 (1997) (limiting congressional abrogation to the Fourteenth Amendment). Specifically, Congress must establish a pattern of constitutional violations, as it relates to its remedial statute, when utilizing section 5 powers. Florida, Prepaid Postsecondary Educ. Expense Bd. v. College Sav. Bank, 527 U.S. 627, 640 , 119 S.Ct. 2199, 2207 , 144 L.Ed.2d 575 (1999).
The majority’s view today cannot be reconciled with the specific findings of Congress or the plain meaning of the self-care leave provision of FMLA. My issue with the majority is two-fold. First, the self-care provision of FMLA is distinguishable from the family-care provision in scope and purpose. 2 Second, prevention of gender discrimination in the workplace is treated by the majority as the primary purpose of the self-care provisions, a purpose which is not supported by Congress’s findings or the historical record leading to the passage and enactment of FMLA.
As a preliminary matter, to seek relief under the self-care provision of FMLA, one must have “a serious health condition that makes the employee unable to perform the functions of the position of such employee.” 29 U.S.C. § 2612 (a)(1)(D). A “serious health condition” which is gender specific, as defined by the Department of Labor, includes “any period of incapacity due to pregnancy, or for prenatal care.” 29 C.F.R. § 825.114 (a)(2)(ii). Simply being pregnant, as opposed to suffering complications from pregnancy, is not a serious health condition and does not trigger FMLA protections. Aubuchon v. Knauf Fiberglass, GmbH, 359 F.3d 950, 952 (7th Cir.2004); Cruz v. Publix Super Mkts., Inc., 428 F.3d 1379, 1383 (11th Cir.2005). Generally, a “serious health condition” is defined as “an illness, injury, impairment, or physical or mental condition that involves ... (A) inpatient care in a hospital, hospice, or residential medical care facility; or (B) continuing treatment by a health care provider.” 29 U.S.C. § 2611 (11). When looking at the totality of those who are affected by serious or chronic illness in the United States, pregnancy-related complications make up only a small fraction of that total.
There is no evidence or authority to support the majority’s contention that the self-care provision of FMLA was designed to protect women from employment discrimination allegedly arising from pregnancy-related illnesses — much less, from employment discrimination practiced by states, related to pregnancy-related illnesses. The majority also do not cite to any authority substantiating a stereotype that female state employees of child-bearing age take more leave than other state employees.
*587 Congress set forth Findings, which, in its opinion, warranted passage of the Act, at 29 U.S.C. § 2601 . The Finding which is most relevant to this case states that “due to the nature of the roles of men and women in our society, the primary responsibility for family caretaJcing often falls on women, and such responsibility affects the working lives of women more than it affects the working lives of men....” Id. at § 2601(a)(5) (emphasis added). Based on this Finding, the U.S. Supreme Court has understandably approved congressional application of FMLA to the states for family leave purposes. 3
Conversely, the Finding most relevant to the self-care leave provisions makes no distinction between the sexes. See id. at § 2601(a)(4), which states merely that “there is inadequate job security for employees who have serious health conditions that prevent them from working for temporary periods”; this Finding makes no distinction between male and female employees. Without legislative history connecting any self-care finding to a pattern of sex discrimination, we must give the self-care provision of FMLA its plain meaning, which is to allow any eligible employee with a serious medical condition the opportunity to take up to twelve weeks’ unpaid medical leave without fear of losing his or her job.
The Senate Committee Report in support of the bill which became FMLA likewise recognizes the distinction between leave for family care and leave for self-care purposes. After discussing family care issues, the Report continues:
In addition to the family leave purposes described above, [FMLA] provides for unpaid job protected leave and the continuation of any existing health insurance coverage during an employee’s serious illness. The fundamental rationale for such a policy is that it is unfair for an employee to be terminated when he or she is struck with a serious illness and is not capable of working.
Sen. Rep. No. 103-3, at 11 (1993), repnnted in 1993 U.S.C.C.A.N. 1, 13 (emphases supplied). Unlike family care duties, which were found stereotypically to fall far more frequently upon female employees, the Committee recognized that both males and females suffer serious health conditions in substantially equal proportions.
In recognizing the distinction between the stereotype regarding women’s role as primary-care givers and the gender-neutral need to care for one’s own serious health conditions, Congress had before it the following finding:
Recent studies provided to the [House Education and Labor] Committee indicate that men and women are out on medical leave approximately equally. Men workers experience an average of 4.9 days of work loss due to illness or injury per year, while women workers experience 5.1 days per year. The evidence also suggests that the incidence of serious medical conditions that would be covered by medical leave under the bill is virtually the same for men and women. Employers will find that women and men will take medical leave with equal frequency.
H.R.Rep. No. 101-28(1), at 15 (1989) (quoted by the Sixth Circuit in Touvell v. Ohio Dep’t of Mental Retardation & Developmental Disabilities, 422 F.3d 392 (6th Cir. 2005), cert. denied, 546 U.S. 1173 , 126 S.Ct. 1339 , 164 L.Ed.2d 54 (2006)).
In rejecting UTEP’s Eleventh Amendment defense, the majority reject a plethora of cases, almost all of which have found *588 that individuals’ efforts to sue a state (or state agency) under the self-care provisions of FMLA are barred and that Congress did not successfully abrogate the states’ Eleventh Amendment immunity.
To understand the status of the case law in this regard, we need to begin with the Ninth Circuit’s decision in Hibbs v. Department of Human Resources, 273 F.3d 844 (9th Cir.2001). In that case, Hibbs sought and obtained FMLA leave from his state job to care for his ailing wife. When he did not return from this leave pursuant to the Department’s instructions, he was disciplined. He filed suit under, inter alia, FMLA, but the district court granted the state’s motion for summary judgment. The Ninth Circuit reversed and remanded for trial. In doing so, however, it emphasized that the state’s constitutional argument might well have been stronger under a self-care claim, and it stated: “We do not mean here to state any view with regard to the personal disability provision of the FMLA.” 273 F.3d at 868 n. 29.
The Supreme Court granted certiorari and affirmed, sub nom. Nevada Dep’t of Human Resources v. Hibbs, 538 U.S. 721 , 123 S.Ct. 1972 , 155 L.Ed.2d 953 (2003). In doing so, however, the Court made it clear that it was addressing only leave for family care. See. e.g., id. at 725, 123 S.Ct. at 1976 (“We hold that employees of the State of Nevada may recover money damages in the event of the State’s failure to comply with the family-care provision of the Act.”) (emphasis supplied); see also id. at 737 , 123 S.Ct. at 1982 (“We believe that Congress’ chosen remedy, the family-care leave provision of the FMLA, is ‘congruent and proportional to the targeted violation’ [citation omitted].”) (emphasis supplied).
I am hard-pressed to think how the Court might more explicitly have stated its intention to limit its holding solely to the family-care provision of the Act.
Since the Supreme Court’s decision in Hibbs, numerous courts have followed its holding. To date, six federal courts of appeals have explicitly followed the Court’s lead in finding that the states have Eleventh Amendment immunity from employee suits under the self-care portion of the Act:
• Fifth Circuit: Nelson v. University of Tex. at Dallas, 535 F.3d 318 (5th Cir. 2008).
Prior to Hibbs, the Fifth Circuit had held, in Kazmier v. Widmann, 225 F.3d 519, 526-27 (5th Cir.2000), that states had Eleventh Amendment immunity to suits under both subparagraphs (C) [family-care leave] and (D) [self-care]. In Nelson , the court held: “[W]e agree with the rationale of the Sixth, Seventh, and Tenth Circuits that the Supreme Court’s ruling in Hibbs applies only to subsection C. Therefore, this court’s decision in Kazmier still remains the law of this circuit with respect to subsection D.” 535 F.3d at 321 .
Sixth Circuit: Touvell v. Ohio Dep’t of Mental Retardation & Developmental Disabilities, 422 F.3d 392 (6th Cir. 2005), cert. denied, 546 U.S. 1173 , 126 S.Ct. 1339 , 164 L.Ed.2d 54 (2006).
The court agreed that “Hibbs does not apply to the self-care provision.... ” 422 F.3d at 400 .
The Sixth Circuit discussed and expressly rejected the Fourth Circuit’s opinion in Montgomery: 4 “The Fourth Circuit gave no explanation for this statement, ... and we do not consider it persuasive.” 422 F.3d at 400 n. 2.
Seventh Circuit: Toeller v. Wisconsin Dep’t of Corrections, 461 F.3d 871 (7th Cir .2006).
*589 In holding that the plaintiffs claim was ban’ed by the Eleventh Amendment, the court stated: “We note ... that the Supreme Court was careful throughout Hibbs to state that it was deciding a case about the family-leave part of the FMLA; one would be hard-pressed to find anything in that opinion hinting that the ruling extended to all of § 2612(a).” 461 F.3d at 879 .
Tenth Circuit: Brockman v. Wyoming Dep’t of Family Servs., 342 F.3d 1169 (10th Cir.2003), cert. denied, 540 U.S. 1219 , 124 S.Ct. 1509 , 158 L.Ed.2d 155 (2004).
The court held that the “self-care provision in subsection (D) is not implicated by” Hibbs and that the “legislative history [of FMLA] does not ... identify as the basis for subsection (D) a link between these two motivations and any pattern of discriminatory stereotyping on the part of the states as employers.” 342 F.3d at 1164 .
• Eleventh Circuit: Batchelor v. South Fla. Water Mgmt. Dist., 242 Fed.Appx. 652 (11th Cir.2007).
In Garrett v. University of Ala. at Birmingham Bd. of Trs., 193 F.3d 1214, 1219 (11th Cir.1999), rev’d in part on other grounds, 531 U.S. 356 , 121 S.Ct. 955 , 148 L.Ed.2d 866 (2001), which preceded Hibbs, the Eleventh Circuit had held that the state had Eleventh Amendment immunity in a self-care case under FMLA.
In Batchelor , the court held that “Garrett ... remains the law of this Circuit” regarding the self-care provision of FMLA. 242 Fed.Appx. at 653 .
In three other circuits, the courts held, prior to Hibbs, that states enjoy Eleventh Amendment immunity from suits arising under the self-care provisions of FLMA. In these circuits, the courts have not been called upon to reconsider them holdings in light of Hibbs, but there is no reason to believe that they would now reach a different conclusion:
First Circuit: Laro v. New Hampshire, 259 F.3d 1 (1st Cir.2001).
This case involved solely a claim arising under the self-care provisions of the Act. In a thorough analysis of the issue, the First Circuit found a lack of congruence between the desire to eliminate sex discrimination and the self-care remedy which was sufficient to waive the state’s Eleventh Amendment immunity. 259 F.3d at 16-17 .
In Hibbs v. Department of Human Resources, the Ninth Circuit noted, with substantial approval, the distinction Laro drew between the constitutionality of applying to the states the family-care and self-care provisions of the Act. See 273 F.3d at 855 .
Second Circuit: Hale v. Mann, 219 F.3d 61 (2d Cir.2000).
The court held that application of the self-care provisions of FMLA to a state agency violates the state’s Eleventh Amendment immunity. 219 F.3d at 69 .
Third Circuit: Chittister v. Department of Cmty. & Econ. Dev., 226 F.3d 223 (3d Cir.2000) (Alito, J.).
In another self-care case, then-judge Alito held that application of the Act to an employee of a state agency resulted in a lack of congruence and proportionality between the injury to be remedied and the means adopted to that end. In reviewing Congress’s Findings, Judge Alito noted:
Notably absent is any finding concerning the existence, much less the prevalence, in public employment of personal sick leave practices that amounted to intentional gender discrimination in violation of the Equal Protection Clause. For example, *590 Congress did not find that public employers refused to permit as much sick leave as the FMLA mandates with the intent of disadvantaging employees of one gender.
226 F.3d at 228-29 .
While the Third Circuit itself has not reconsidered Judge Alito’s opinion, four district judges within its jurisdiction have unanimously agreed that Chittister survives Hibbs:
Savage v. New Jersey, No. 05-2047, 2007 WL 642916 (D.N.J. Feb. 23, 2007).
“The explicit and narrow holding in Hibbs, has not overturned the holding in Chittister that the self-care provision cannot be enforced against the States.... Chittister remains the law of this circuit....” Id. at *5.
Wampler v. Pennsylvania Dep’t of Labor & Indus., 508 F.Supp.2d 416 (M.D.Pa.2007)
The court cited with approval the foregoing holding in Savage. Id. at 420-21 .
Haybarger v. Lawrence County Adult Probation & Parole, No. 06-862, 2007 WL 789657 (W.D.Pa. March 14, 2007) (Lancaster, J.).
The court held that Hibbs “was limited to the ‘family-care’ provision and does not affect the reasoning of Chittister with regards to the ‘self-care’ provision of the FMLA.” Id. at *3 n. 1.
Walker v. Department of Military & Veterans Affairs, No. 2:08CV267, 2008 WL 2433091 (W.D.Pa. June 12, 2008)(Cercone, J.).
The court held that “the Hibbs decision was limited to the ‘family-care’ provision and ... the Third Circuit’s holding regarding the ‘self-care’ provision of the FMLA remained unaffected.” Id. at *2.
Similarly, while the Ninth Circuit has not again faced the issue, one district court within its jurisdiction has found Eleventh Amendment immunity in a self-care case:
Wennihan v. AHCCCS, 515 F.Supp.2d 1040 (D.Ariz.2005).
In a self-care case, the court distinguished Hibbs and concluded that its family-care holding was not applicable. Instead, the court followed the Tenth Circuit decision in Brockman , and held that the plaintiffs suit against an agency of the State of Arizona was barred by the Eleventh Amendment. Id. at 1046.
Finally, although this is apparently a case of first impression in the state courts of Texas, at least three other states’ courts have joined the federal chorus in finding that self-care cases are barred by the Eleventh Amendment:
Louisiana: Matthews v. Military Dep’t ex rel. La., 970 So.2d 1089 (La. App. 1 Cir.2007), writ denied, 976 So.2d 177 (La.), cert. denied, — U.S. -, 129 S.Ct. 82 , 172 L.Ed.2d 29 (2008).
In a self-care case, the Louisiana Court of Appeal also followed Brockman and found that Congress had not lawfully abrogated the state’s Eleventh Amendment immunity. 970 So.2d at 1090 .
Maryland: Lizzi v. Washington Metro. Area Transit Auth., 384 Md. 199 , 862 A.2d 1017 (2004), cert. denied, 545 U.S. 1116 , 125 S.Ct. 2919 , 162 L.Ed.2d 297 (2005).
In a self-care case, the Court of Appeals of Maryland followed Brockman , holding that Hibbs “does not have any effect ” on the personal-leave provision of FMLA. Id. at 211-12, 862 A.2d at 1024-25 (emphasis in original). In doing so, the state court expressly rejected the Fourth Circuit’s Montgomery decision.
Utah: Nicholas v. Attorney Gen., 168 P.3d 809 (Utah 2007).
*591 Upholding the state’s Eleventh Amendment immunity, the court followed the Sixth Circuit’s opinion in Tou-vell.
In summary, the federal courts of appeals for nine circuits (the First, Second, Third, Fifth, Sixth, Seventh, Eighth, Tenth, and Eleventh Circuits), 5 a federal district court in one of the two circuits (the Ninth and the District of Columbia) which have not been presented with a controlling case, and the highest courts of three states (Louisiana, Maryland, and Utah) have concluded that Congress could not constitutionally abrogate the states’ Eleventh Amendment immunity in regard to the self-care provisions of FMLA.
Despite the existence of a conflict in the circuits (albeit a 9-1 split), the United States Supreme Court has been given four opportunities to announce a contrary conclusion, and it has denied a writ of certio-rari all four times. See Touvell, Brock-man, Mattheivs, and Lizzi .
I am aware of two cases which have reached a contrary conclusion, neither of which, in my opinion, is well-reasoned and neither of which actually addresses the issue presented to our Court:
Fourth Circuit: Montgomery v. Maryland, 72 Fed.Appx. 17 (4th Cir.2003) (per curiam) (unpublished).
Just two months after Hibbs was decided, the Fourth Circuit summarily cited it for the proposition that “Congress effectively abrogated the states’ Elev- entís. Amendment immunity against causes of action based on the FMLA.” Id. at 19. In so holding, the court did not notice, let alone discuss, any distinction between the family-care and self-care provisions of the Act. 6
The court’s cursory treatment of Hibbs may well be attributable to the fact that assertion quoted above is pure dictum, since the court then dismissed the lawsuit for failure to state a claim upon which relief can be granted. Id. at 20.
Hamilton v. Niagara Frontier Transp. Auth., Nos. 00-CV-300SR, 00-CV-8635R, 2007 WL 2241794 (W.D.N.Y. July 31, 2007) (Schroeder, Mag. J.).
In Hamilton also, the Magistrate Judge stated summarily that, in Hibbs, the Supreme Court “held that the FMLA is a valid abrogation of state immunity.” Id. at *13. The district court’s opinion did not recognize, let alone discuss, any distinction between the family-care and self-care provisions.
The court likewise did not reference, even in passing, the Second Circuit’s contrary decision in Hale .
Thus, the only two cases which have found a state’s Eleventh Amendment immunity to have been abrogated by the self-care provisions of FMLA did so in opinions which overlooked the distinction, so carefully and repeatedly noted by the Supreme Court itself (see, e.g., 538 U.S. at 737 , 123 *592 S.Ct. at 1982 7 ), between family-care and self-care leaves.
The majority opinion flies in the face of a mountain of contrary and persuasive legal authority. I therefore respectfully dissent from its holding that Hibbs abrogated Texas’ Eleventh Amendment immunity from Herrera’s FMLA claim arising from a self-care leave.
The majority deem it unnecessary to consider Herrera’s alternative contentions that Texas has voluntarily waived its sovereign immunity by State law or by provisions in the TJTEP handbook. In view of the majority’s holding, I do not deem it necessary to discuss them in any detail. It will suffice to say that I believe Herrera’s contention that UTEP waived the State’s immunity by provisions in its Handbook to be without merit. See Wells v. Texas A & M Univ. Sys., No. 06-04-00001-CV, 2004 WL 2114438 (Tex.App.-Texarkana Sept. 24, 2004, pet. denied), cert. denied, 546 U.S. 814 , 126 S.Ct. 338 , 163 L.Ed.2d 50 (2005).
. In enacting the Family and Medical Leave Act (FMLA), 29 U.S.C. §§ 2601 et seq., Congress clearly satisfied the first prong of the Seminole test: "An action to recover ... damages ... may be maintained against any employer (including a public agency) in any Federal or State court of competent jurisdiction....” 29 U.S.C. § 2617 (a)(2) (emphasis supplied).
. In relevant part, the two provisions read as follows:
(1) Entitlement to leave [A]n eligible employee shall be entitled to a total of 12 workweeks of leave during any 12-month period for one or more of the following:
(C) In order to care for the spouse, or a son, daughter, or parent, of the employee, if such spouse, son, daughter, or parent has a serious health condition.
(D) Because of a serious health condition that makes the employee unable to perform the functions of the position of such employee.
29 U.S.C. § 2612 (a)(1)(C), (D).
. See Nevada Dep’t of Human Resources v. Hibbs, 538 U.S. 721 , 123 S.Ct. 1972 , 155 L.Ed.2d 953 (2003) (hereinafter, “Hibbs discussed in greater detail below.
. Fully cited and more thoroughly analyzed below.
. I have not sought to discuss the numerous federal district courts cases in which the court has simply followed and applied the law of that circuit. I have also not discussed at least three district court cases which arose within the Fifth Circuit after Hibbs, but prior to the Nelson decision. See Bryant v. Mississippi State Univ., 329 F.Supp.2d 818 , 821-22 n. 2, 825 (N.D.Miss.2004); Solley v. Big Spring State Hosp., No. Civ.A. L03-CV-094-C, 2004 WL 1553423 (N.D.Tex. July 12, 2004); Jordon v. Texas Dep’t of Aging & Disabilities Servs., No. 9:05CV161, 2006 WL 1804619 (E.D.Tex. June 28, 2006).
. See Bryant, 329 F.Supp.2d at 821 -22 n. 2. where the court rejected the holding in Montgomery : "With no analysis of the issue, the Fourth Circuit reached a conclusion opposite of the one this Court reaches today.... In the absence of more consideration, this Court is unpersuaded by such a general conclusion.”
. "We believe that Congress' chosen remedy, the family-care leave provision of the FMLA, is ‘congruent and proportional to the targeted violation,'..(emphasis supplied).