IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                           No. 02-20801
                         Summary Calendar


JOHN O’NEAL HENRY,

                                    Plaintiff-Appellant,

versus

BOARD OF PARDONS AND PAROLES; TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, INSTITUTIONAL DIVISION,

                                    Defendants-Appellees.

                       --------------------
           Appeal from the United States District Court
                for the Southern District of Texas
                       USDC No. H-01-CV-279
                       --------------------
                          January 9, 2003

Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.

PER CURIAM:*

     John O’Neal Henry, Texas prisoner # 324238, has appealed the

district court’s order dismissing his civil rights action for

failure to state a claim upon which relief can be granted.   See

FED. R. CIV. P. 12(b)(6); see also 28 U.S.C. § 1915(e)(2)(B)(ii).

     Henry contends that the defendants violated Title II of the

Americans with Disabilities Act by failing to accommodate his

hearing impairment in connection with a prison substance abuse

program.   The district court dismissed this claim because the

     *
       Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
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                                -2-

defendants are immune from suit under the Eleventh Amendment.

“The Eleventh Amendment bars an individual from suing a state in

federal court unless the state consents to suit or Congress has

clearly and validly abrogated the state’s sovereign immunity.”

Perez v. Region 20 Educ. Service Center, 

, 326 (5th

Cir. 2002).   This court has held that Congress did not abrogate

validly the states’ Eleventh Amendment immunity in enacting Title

II of the ADA.   Reickenbacker v. Foster, 

, 979-83

(5th Cir. 2001) (extending Board of Trustees of University of

Alabama v. Garrett, 

, 359-68 (2001)).     Henry does not

contend that Texas has waived its Eleventh Amendment immunity and

the exception to Eleventh Amendment immunity provided by Ex parte

Young, 

, 159-60 (1908), is not available to Henry

because he sued state agencies only.    See 

n.9 (citing Aguilar v. Texas Dept. of Criminal Justice,

, 1053 (5th Cir. 1998)).     Henry’s ADA claim was

dismissed properly under the rule in Reickenbacker.

     Henry contends that his rights under the Ex Post Facto

Clause were violated because he was required to pay a supervisory

fee while on parole between 1990 and 1992.     The district court

held that this claim is time-barred.    “The statute of limitations

for a suit brought under § 1983 is determined by the general

statute of limitations governing personal injuries in the forum

state.”   Piotrowski v. City of Houston, 

, 576 (5th

Cir.), cert. denied, 

(2001).     In Texas, personal
                             No. 02-20801
                                  -3-

injury actions are subject to a two-year limitations period.

See TEX. CIV. PRAC. & REM. CODE ANN. § 16.003(a) (West 2002).     Henry

had two years to file suit from the date his Ex Post Facto claim

accrued.   See 

.     “Accrual of a § 1983

claim is governed by federal law: Under federal law, the

limitations period begins to run the moment the plaintiff becomes

aware that he has suffered an injury or has sufficient

information to know that he has been injured.”      

marks and brackets omitted).      The district court

concluded that Henry’s claim accrued in 1992, when Henry’s parole

was revoked.    Henry’s complaint was filed more than two years

later, on January 24, 2001.    Henry contends on appeal that his

claim did not accrue until 1999, the last time the Texas Board of

Pardons and Paroles denied him release on parole.      This argument

is without merit because this event is not pertinent to the Ex

Post Facto claim.

     Because the appeal is frivolous, it is dismissed.      See

Howard v. King, 

, 219-20 (5th Cir. 1983); 5TH CIR.

R. 42.2.   The dismissal of this appeal as frivolous counts as a

strike for purposes of 28 U.S.C. § 1915(g).      Ordinarily, the

district court’s dismissal of the complaint under 28 U.S.C.

§ 1915(e)(2)(B)(ii) would also count as a strike under 28 U.S.C.

§ 1915(g).     See Adepegba v. Hammons, 

, 388 (5th Cir.

1996).   In this case, however, this court remanded the case to

the district court, encouraging Henry to proceed, and the law
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                                -4-

changed while the case was on remand.     Accordingly, the dismissal

of Henry’s complaint by the district court pursuant to 28 U.S.C.

§ 1915(e)(2)(B)(ii) shall not be regarded as a strike under 28

U.S.C. § 1915(g).

     Henry has at least one other strike.     See Henry v. Texas

Department of Criminal Justice, No. 00-20377 (5th Cir. Oct. 8,

2000) (unpublished).   He now has two strikes.   We caution Henry

that once he accumulates three strikes, he will not be permitted

to proceed in forma pauperis in any civil action or appeal filed

while he is incarcerated or detained in any facility unless he is

under imminent danger of serious physical injury.     See 28 U.S.C.

§ 1915(g).

     APPEAL DISMISSED; SANCTION WARNING GIVEN.