Case: Grassroots Leadership v. Texas Department of Family and Protective Services

15-cv-04336 | Texas state trial court

Filed Date: Sept. 26, 2015

Case Ongoing

Clearinghouse coding complete

Case Summary

On September 26, 2015, Grassroots Leadership (an Austin-based nonprofit that opposes private prison companies), 22 detainees (11 mothers and 11 children), and a licensed childcare service provider, filed this suit in state court, in the 353rd Judicial District Court of Travis County, to prevent Texas from licensing two family detention centers, in which U.S. Immigration and Customs Enforcement (ICE) detained mothers and their children. Their challenge centered on the length and conditions of de…

On September 26, 2015, Grassroots Leadership (an Austin-based nonprofit that opposes private prison companies), 22 detainees (11 mothers and 11 children), and a licensed childcare service provider, filed this suit in state court, in the 353rd Judicial District Court of Travis County, to prevent Texas from licensing two family detention centers, in which U.S. Immigration and Customs Enforcement (ICE) detained mothers and their children. Their challenge centered on the length and conditions of detention that could result from state licensure, arguing that it would allow for the detention of children for longer periods under lower standards of care. The plaintiffs sought a court order declaring that state licensure of these facilities was against Texas law.

The case was brought about based on a much earlier precedent. In 1997, a settlement was reached in a federal civil rights suit, Flores v. Reno, 84-cv-04544 (C.D. Cal) (IM-CA-0002 in this clearinghouse), providing that minors detained by the U.S. as their immigration cases proceeded could only be housed in non-secure and licensed settings. In July and August 2015, U.S. District Judge Dolly Gee agreed with the Flores plaintiffs that the settlement applied to minors who were apprehended along with their parents, as well as to unaccompanied minors. Accordingly, Judge Gee held, the settlement barred long-term family detention in detention centers not licensed for children's occupancy by the state in which they were located. Of three such family detention centers nationwide, two were in Texas: Dilley and Karnes.

In September 2015, the Texas Department of Family and Protective Services (DFPS), adopted an emergency regulation, allegedly authorized by Texas statute (Tit. 40, Pt. 19, Ch. 748, Subch. A, R. 748.7). The regulation allowed the state to issue child-care licenses to the detention centers, though DFPS has historically denied that it had the authority to license family residential centers of any kind.

In response to the emergency rule, the plaintiffs in this case claimed that DFPS lacked statutory authority to license the detention centers, which were run for ICE by for-profit prison companies: CoreCivic (formerly known as Corrections Corporations of America) which operated Dilley and the GEO Group which operated Karnes. Both CoreCivic and GEO Group subsequently intervened and were added as defendants to this litigation. The plaintiffs argued that the federal government enlisted Texas to help make family detention centers licensed child care facilities (because the federal government does not license such facilities) in order to exploit a loophole in the Flores consent decree to allow for longer--and potentially indefinite--detention of immigrant parents and their children.

On October 22, 2016, Texas sought to remove the case to the U.S. District Court for the Western District of Texas. It was assigned docket number 15-cv-00945 (W.D. Tex). However, U.S. District Judge Sam Sparks held there was no federal jurisdiction, because action arose under state rather than federal law, and declined to hear the case.

Back in state court, the plaintiffs argued that the regulation was procedurally improper because no emergency existed. On November 20, 2015, Texas trial court Judge Karin Crump agreed, and temporarily enjoined the regulation.

DFPS then reissued the regulation using the ordinary, non-emergency procedure, opening it up for public comment. It went into effect on March 1, 2016. Three days later, DFPS licensed the smaller of the two ICE detention centers, in Karnes. On May 4, 2016, Judge Crump granted a temporary restraining order against licensure of the second, larger, Dilley detention center, finding that the plaintiffs were likely to prevail in their arguments that the regulation exceeded the agency's statutory authority. On June 3, 2016, Judge Crump issued an injunction ordering the defendants to refrain from issuing a license to Dilley. In December 2016, Judge Crump issued a final order, holding that DFPS's emergency rule violated Texas statutory standards for licensing residential childcare facilities. She declined to grant the plaintiffs' request for attorneys' fees.

Texas and the private prison companies filed a notice of appeal on December 21, 2016. That day, the Texas Court of Appeals transferred the case from the Court's 3rd District (Austin) to its 8th District (El Paso); the docket number is 08-16-00334-CV.

In May 2017, the Texas State Senate passed a bill that would have overridden Judge Crump's decision, allowing DFPS to license the Dilley and Karnes detention centers as childcare facilities. Private prison companies had lobbied for the bill. However, this bill did not pass in the Texas State House.

In the interim, the case continued in the Texas Court of Appeals. Texas and both prison companies filed separate initial briefs in June 2017. The parties each filed responses and replies until briefing was complete on January 30, 2018. The Texas Supreme Court transferred the case back to the Court’s 3rd District (Austin) in April 2018. In the interim, Texas informed the court that Karnes had changed its protocol and had started detaining fathers and their children. The court heard oral arguments on September 5, 2018.

On November 28, 2018, a 3-judge panel of the Texas Court of Appeals reversed the trial court's order and dismissed the lawsuit finding that there was no “live controversy” at the time the trial judge ruled. 2018 WL 6187433. The appellate court found that none of the plaintiffs has standing to bring this suit: Grassroots could not show concrete injury to itself as an organization, the private child care provider would not be in direct economic competition with Karnes and Dilley if licensed, and the immigrants were no longer detained in the facilities and had not claimed specific ways that the licensure would place them in harm’s way. The appellate court ordered the plaintiffs to pay the government and the private prison companies’ attorneys' fees from the trial and appellate court proceedings.

The plaintiffs requested rehearing in December 2018, arguing that the court had effectively prevented any judicial review of whether Texas had exceeded its statutory authority in issuing the rule. That motion was denied. In January 2018, the plaintiffs moved for rehearing en banc (before the full court), arguing that this was an issue of national importance which required full review. They noted that Texas law largely determines the scope of family detention since thousands of family detention beds are located in Texas while less than a hundred are authorized outside of it, and highlighted the stakes regarding the safety of children. On December 5, 2019, the Texas Court of Appeals denied the motion for rehearing en banc. Justice Gisela D. Triana (joined by Justices Chari L. Kelly and Edward Smith) dissented, finding the case to be of extraordinary circumstances meriting en banc review. Justice Triana’s dissent agreed that Grassroots and the child-care center did not have standing, but would find that the detainees did have standing. The plaintiffs then filed for review in the Texas Supreme Court in July 2020.

While the November 2018 opinion opened the door for Texas to license Karnes or Dilley, it is unclear whether either facility has formally sought or obtained licensing or whether things are on hold pending the plaintiff’s rehearing requests.

This case is ongoing.

Summary Authors

Soojin Cha (8/4/2016)

Ava Morgenstern (2/20/2018)

Veronica Portillo Heap (2/25/2019)

Emily Kempa (3/8/2021)

Related Cases

Flores v. Reno, Central District of California (1985)

People


Judge(s)

Crump, Karin (Texas)

Kelly, Chari L (Texas)

Smith, Edward (Texas)

Sparks, Sam (Texas)

Triana, Gisela D (Texas)

Attorneys(s) for Plaintiff

Bunker-Henderson, Nichole Beth (Texas)

Dernick, Cameron (Texas)

Disher, Todd Lawrence (Texas)

Doggett, Robert (Texas)

Edelman, Andrew (Texas)

Judge(s)

Crump, Karin (Texas)

Kelly, Chari L (Texas)

Smith, Edward (Texas)

Sparks, Sam (Texas)

Triana, Gisela D (Texas)

Attorneys(s) for Plaintiff

Bunker-Henderson, Nichole Beth (Texas)

Dernick, Cameron (Texas)

Disher, Todd Lawrence (Texas)

Doggett, Robert (Texas)

Edelman, Andrew (Texas)

Emery, Mark Thomas (District of Columbia)

Hawkins, Kyle Douglas (Texas)

Keller, Scott A. (Texas)

Mateer, Jeffrey C. (Texas)

Monson, Kristofer S. (Texas)

Paxton, Ken (Texas)

Wesevich, Jerome W. (Texas)

Wilkin, Bruce (Texas)

York, Bertina B. (Texas)

Attorneys(s) for Defendant

Bacarisse, Nicholas B. (Texas)

Holsinger, Kara (Texas)

Tulinski, Pat (Texas)

Warr, Amy (Texas)

Other Attorney(s)

Brown, Jay W. (Texas)

Deacon, Charles A (Texas)

Documents in the Clearinghouse

Document

District Court Docket on removal issue

U.S. District Court for the Western District of Texas

Nov. 9, 2015 Docket

State Court Docket as of 03/20/2017

Feb. 17, 2017 Docket

Docket [STATE COURT]

Texas Department of Family and Protective Services v. Grassroots Leadership, Inc.

Texas state appellate court

June 22, 2020 Docket
6-1

Petition

U.S. District Court for the Western District of Texas

Oct. 26, 2015 Complaint
6-1

Rule 11 Agreement

U.S. District Court for the Western District of Texas

Oct. 26, 2015 Pleading / Motion / Brief
12

Order [Denying Removal]

U.S. District Court for the Western District of Texas

Nov. 3, 2015 Order/Opinion

Temporary Restraining Order (Nov 20, 2015)

Nov. 20, 2015 Order/Opinion
5160

Second Amended Petition Seeking a Temporary Restraining Order and Declaratory Relief

May 3, 2016 Pleading / Motion / Brief
5554

Application for Temporary Restraining Order with Injunction and Brief in Support

May 3, 2016 Pleading / Motion / Brief

Temporary Restraining Order

May 4, 2016 Order/Opinion

Resources

Title Description External URL

Lawsuit [Grassroots Leadership v. Texas Department of Family and Protective Services]

Grassroots Leadership

A watchdog group is suing the agency charged with protecting the state’s most vulnerable Texans, alleging the department fast-tracked a policy change that might help the federal government convince a… Dec. 6, 2016 https://grassrootsleadership.org/tags/lawsuit

Docket

Last updated May 11, 2022, 8 p.m.

ECF Number Description Date Link
1

NOTICE OF REMOVAL by Texas Department of Family and Protective Services (Filing fee $400 wavied), filed by Texas Department of Family and Protective Services. (Attachments: # 1 Civil Cover Sheet)(Holsinger, Kara) Modified on 10/22/2015 to correct the name of the filing party(so). (Attachment 1 replaced on 10/22/2015 to flatten boxes) (so). (Entered: 10/22/2015)

Oct. 22, 2015
2

SUPPLEMENT to JS 44 Civil Cover Sheet by Texas Department of Family and Protective Services, Chris Traylor, Trevor Woodruff. (Holsinger, Kara) (Entered: 10/22/2015)

Oct. 22, 2015

Case Assigned to Judge Sam Sparks. CM WILL NOW REFLECT THE JUDGE INITIALS AS PART OF THE CASE NUMBER. PLEASE APPEND THESE JUDGE INITIALS TO THE CASE NUMBER ON EACH DOCUMENT THAT YOU FILE IN THIS CASE. (so) (Entered: 10/22/2015)

Oct. 22, 2015
3

ORDER the removing party supplement the record with state court pleadings. Signed by Judge Sam Sparks. (so) (Entered: 10/22/2015)

Oct. 22, 2015
4

Letter to Patricia M. Tulinski re: non−admitted status. (so) (Entered: 10/22/2015)

Oct. 22, 2015
5

Opposed MOTION to Remand to State Court and Request for Expedited Consideration and Attorney Fees by Grassroots Leadership, Inc.. (Attachments: # 1 Proposed Order)(Doggett, Robert) (Entered: 10/23/2015)

Oct. 23, 2015
6

NOTICE OF REMOVAL by Texas Department of Family and Protective Services, Trevor Woodruff, Chris Traylor Amended (Filing fee $400), filed by Texas Department of Family and Protective Services, Trevor Woodruff, Chris Traylor. (Attachments: # 1 Exhibit)(Holsinger, Kara) (Entered: 10/26/2015)

Oct. 26, 2015
7

SUPPLEMENT to 5 Opposed MOTION to Remand to State Court and Request for Expedited Consideration and Attorney Fees by Grassroots Leadership, Inc.. (Doggett, Robert) (Entered: 10/27/2015)

Oct. 27, 2015
8

ORDER Setting Hearing on 5 Opposed MOTION to Remand to State Court and Request for Expedited Consideration and Attorney Fees : Motion Hearing set for 10/30/2015 02:00 PM before Judge Sam Sparks,. Signed by Judge Sam Sparks. (dm) (Entered: 10/27/2015)

Oct. 27, 2015
9

MOTION to Appear Pro Hac Vice by Pat Tulinski by Kara Holsinger on behalf of Texas Department of Family and Protective Services, Chris Traylor, Trevor Woodruff. (Attachments: # 1 Proposed Order)(Holsinger, Kara) (Entered: 10/29/2015)

Oct. 29, 2015
11

Minute Entry for proceedings held before Judge Sam Sparks: Motion Hearing held on 10/30/2015 re 5 Opposed MOTION to Remand to State Court and Request for Expedited Consideration and Attorney Fees filed by Grassroots Leadership, Inc., 9 MOTION to Appear Pro Hac Vice by Kara Holsinger filed by Texas Department of Family and Protective Services, Chris Traylor, Trevor Woodruff (Minute entry documents are not available electronically.). (Court Reporter Lily Reznik.)(ml) (Entered: 10/30/2015)

Oct. 30, 2015
13

ORDER GRANTING 9 Motion to Appear Pro Hac Vice as to Pat Tulinski. Pursuant to our Administrative Policies and Procedures for Electronic Filing, the attorney hereby granted to practice pro hac vice in this case must register for electronic filing with our court within 10 days of this order. Signed by Judge Sam Sparks. (dm) (Entered: 11/03/2015)

Nov. 2, 2015
12

ORDER GRANTING IN PART AND DENYING IN PART 5 Motion to Remand to State Court. IT IS FURTHER ORDERED that this case is REMANDED to the 353rd JudicialDistrict Court of Travis County, Texas, where it originated as Cause Number D−1−GN−15−004336. Signed by Judge Sam Sparks. (dm) (Entered: 11/03/2015)

Nov. 3, 2015
14

IT IS ORDERED, ADJUDGED, and DECREED that the above−styled case is remanded to the 353rd Judicial District Court of Travis County, Texas. Signed by Judge Sam Sparks. (dm) (Entered: 11/03/2015)

Nov. 3, 2015
15

Certified Mail Receipt of 14 Order Remanding Case to Travis County. (dm) (Entered: 11/04/2015)

Nov. 4, 2015
16

Certified Mail Receipt of 14 Order Remanding to Travis County. (dm) (Entered: 11/10/2015)

Nov. 9, 2015

State / Territory: Texas

Case Type(s):

Immigration and/or the Border

Key Dates

Filing Date: Sept. 26, 2015

Case Ongoing: Yes

Plaintiffs

Plaintiff Description:

Grassroots Leadership, a non-profit organization advocating against for-profit incarceration, on behalf of immigrants who were detained in family detention camps. Detained immigrant women and children. A private Texas licensed child-care provider.

Plaintiff Type(s):

Private Plaintiff

Non-profit NON-religious organization

Public Interest Lawyer: Yes

Filed Pro Se: No

Class Action Sought: No

Class Action Outcome: Not sought

Defendants

Texas Department of Family and Protective Services (DFPS), State

Defendant Type(s):

Jurisdiction-wide

Case Details

Causes of Action:

State law

Availably Documents:

Trial Court Docket

Complaint (any)

Injunctive (or Injunctive-like) Relief

Non-settlement Outcome

Any published opinion

Outcome

Prevailing Party: Defendant

Nature of Relief:

Preliminary injunction / Temp. restraining order

Declaratory Judgment

Source of Relief:

Litigation

Order Duration: 2016 - None

Content of Injunction:

Preliminary relief granted

Issues

General:

Classification / placement

Conditions of confinement

Extradition

Juveniles

Placement in detention facilities

Placement in shelters

Sanitation / living conditions

Youth / Adult separation

Type of Facility:

Non-government for profit

Immigration/Border:

Detention - conditions

Family Separation