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McCARTHY EX REL. TRAVIS v. HAWKINS

No. 03-50608.

391 F.3d 676 (2004)

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, 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.

United States Court of Appeals, Fifth Circuit.

November 19, 2004.

Attorney(s) appearing for the Case

Geoffrey N. Courtney (argued), Austin, TX, Noelle M. DiMarco, Asst. U.S. Atty., Skadden, Arps, Slate, Meagher & Flom, Houston, TX, James H. Keahey, Garth Anthony Corbett, Advocacy Inc., Austin, TX, for Plaintiffs-Appellees.

Kevin K. Russell (argued), Sarah Elaine Harrington, U.S. Dept. of Justice, Civ. Rights Div.-App. Section, Washington, DC, for U.S., Intervenor.

Amy Warr (argued), Austin, TX, for Defendants-Appellants.

Karen M. Lockwood, Rachel A. Adams, Howrey, Simon, Arnold & White, Washington, DC, for Amici Curiae.

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. 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.

JERRY E. SMITH, Circuit Judge, with whom E. GRADY JOLLY, EDITH H. JONES,...

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