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

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), 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.