Case: Texas v. US Department of Homeland Security

2:23-cv-00055 | U.S. District Court for the Western District of Texas

Filed Date: Oct. 24, 2023

Case Ongoing

Clearinghouse coding complete

Case Summary

This is a case about the State of Texas and the United State’s Department of Homeland Security (DHS) taking conflicting approaches to border security at the southern border. Texas claimed it was facing a rise in illegal immigration, attributing the surge in individuals seeking asylum to the Biden Administration's failure to secure the border. In response to what it perceived as federal inaction, Texas initiated Operation Lone Star in 2021 to address border security gaps. This operation included…

This is a case about the State of Texas and the United State’s Department of Homeland Security (DHS) taking conflicting approaches to border security at the southern border. Texas claimed it was facing a rise in illegal immigration, attributing the surge in individuals seeking asylum to the Biden Administration's failure to secure the border. In response to what it perceived as federal inaction, Texas initiated Operation Lone Star in 2021 to address border security gaps. This operation included deploying concertina wire fencing along the southern border to deter crossings. Texas alleged that federal agents, particularly those from the U.S. Customs and Border Protection (CBP), intentionally damaged and destroyed Texas's concertina wire barriers over a period of several months during 2023, cut openings in the fence, and attached ropes to aid illegal crossings.

On October 24, 2023, Texas filed this lawsuit in the Western District of Texas. Texas sued DHS, seeking a declaratory judgment vacating DHS’s practice of cutting the wires and declaring it unlawful, a preliminary injunction to enjoin the DHS from cutting the concertina wires, and any other appropriate relief. Texas had several claims; two based on state law alleging that federal officials wrongfully exercised control over the state's concertina wire fencing, which was purchased with state funds, and they caused actual damage, impacting the wire’s utility as a barrier fence. Texas also made three claims under the Administrative Procedure Act (APA), arguing that: 1) federal officials acted beyond their statutory jurisdiction by destroying and seizing state-owned border infrastructure; 2) the policy of seizing and destroying concertina wire constituted a substantive rule and implementing it without notice and comment violated required procedures and 3) the policy of destroying concertina wire is arbitrary and capricious. The case was assigned to Chief Judge Alia Moses.

Texas requested a Temporary Restraining Order (TRO) on October 27, 2023. The court granted the TRO three days later, on October 30. 2023. WL 7135677. The court evaluated the likelihood of success on the merits, irreparable harm on both sides, and the public interest. The court found Texas was likely to succeed on the merits of its state law claim, citing evidence of ownership, actual damage to the wires, and a lack of permission for interference. The court also found that the injuries alleged by Texas (extensive costs incurred by the destruction of state property and the hindering of the state's ability to control its property) were irreparable, as costs were unrecoverable due to sovereign immunity. Finally, the court agreed that deterring unlawful activity was in the public interest, but noted a countervailing interest in DHS’s border security duties and allowing CBP agents to address medical emergencies. It suggested that further hearings were necessary to explore the issues of private property rights, border security duties, and the powers of the defendants.

The court extended the TRO an additional two weeks to November 27, 2023, giving the court additional time to evaluate the merits of a preliminary injunction.

On November 29, the District Court denied the plaintiff's motion for preliminary injunctive relief. With regard to the state law claims, the Court concluded that sovereign immunity presented a jurisdictional barrier to the plaintiffs' request for injunctive relief. As for the APA-based claims, the Court determined that there was insufficient evidence of final agency action so as to review the defendants' acts interfering with the plaintiffs' wire fence. The Court also found insufficient evidence that would support a substantial likelihood of success on the ultra vires claim (an exception to final agency action). The defendants immediately appealed the District Court's order to the U.S. Court of Appeals for the Fifth Circuit the following day. 

Texas then sought an injunction pending the appeal so as to prevent the United States Border Patrol from cutting, destroying, or interfering with concertina wire. On December 19, 2023, the Fifth Circuit granted the request, enjoining the defendants from interfering with the wire, except in the case of medical emergencies. 88 F.4th 1127. 

At the District Court, the defendants sought to stay proceedings pending the appeal, but this was denied by the Court on December 22, 2023, requiring the defendants to file an answer to the plaintiffs' complaint within 90 days. 

On January 2, 2024, the defendants filed an emergency petition before the U.S. Supreme Court to vacate the  injunction. On January 22, 2024, the Supreme Court vacated the December 19 injunction in a 5-4 ruling, with no written opinion. 144 S.Ct. 715. 

Given the Supreme Court's decision, the Fifth Circuit then held the appeal in abeyance on January 26, 2024. The Court of Appeals remanded the case, on a limited basis, back to the district court for 60 days in order for the factual record to be developed. Consistent with the remand, the District Court then provided a supplemental findings on March 26, 2024 regarding factual developments with regard to the border since December 2023. The case remains ongoing. 

Summary Authors

Simran Takhar (11/17/2023)

Kavitha Babu (4/2/2024)

People

For PACER's information on parties and their attorneys, see: https://www.courtlistener.com/docket/67909144/parties/state-of-texas-v-us-department-of-homeland-security/


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Documents in the Clearinghouse

Document
1

2:23-cv-00055

Plaintiffs' Original Complaint

Oct. 24, 2023

Oct. 24, 2023

Complaint
9

2:23-cv-00055

Order on Motion for TRO

Oct. 30, 2023

Oct. 30, 2023

Order/Opinion

2023 WL 2023

57

2:23-cv-00055

Memorandum Opinion and Order

Nov. 29, 2023

Nov. 29, 2023

Order/Opinion

2023 WL 2023

69

2:23-cv-00055

USCA Order

U.S. Court of Appeals for the Fifth Circuit

Dec. 19, 2023

Dec. 19, 2023

Order/Opinion

88 F.4th 88

117-1

50869

Unpublished Order

U.S. Court of Appeals for the Fifth Circuit

Jan. 26, 2024

Jan. 26, 2024

Order/Opinion

Docket

See docket on RECAP: https://www.courtlistener.com/docket/67909144/state-of-texas-v-us-department-of-homeland-security/

Last updated April 2, 2024, 8:58 p.m.

ECF Number Description Date Link Date / Link
1

COMPLAINT ( Filing fee $ 402 receipt number ATXWDC-18020532). No Summons requested at this time, filed by STATE OF TEXAS. (Attachments: # 1 Civil Cover Sheet)(Walters, Ryan) (Entered: 10/24/2023)

1 Civil Cover Sheet

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Oct. 24, 2023

Oct. 24, 2023

Clearinghouse
2

REQUEST FOR ISSUANCE OF SUMMONS by STATE OF TEXAS. All Defendants (Walters, Ryan) (Entered: 10/24/2023)

Oct. 24, 2023

Oct. 24, 2023

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3

Unopposed MOTION for Leave to Exceed Page Limitation by STATE OF TEXAS. (Attachments: # 1 Exhibit Motion for Preliminary Injunction, # 2 Appendix to Motion for Preliminary Injunction, # 3 Proposed Order Granting Preliminary Injunction, # 4 Proposed Order Granting Motion to Exceed Page Limits)(Walters, Ryan) (Entered: 10/24/2023)

1 Exhibit Motion for Preliminary Injunction

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2 Appendix to Motion for Preliminary Injunction

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3 Proposed Order Granting Preliminary Injunction

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4 Proposed Order Granting Motion to Exceed Page Limits

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Oct. 24, 2023

Oct. 24, 2023

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Case assigned to Chief Judge Alia Moses. 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. (ccr)

Oct. 24, 2023

Oct. 24, 2023

PACER
4

Summons Issued as to Alejandro Mayorkas, Troy A. Miller, Jason Owens, US Border Patrol, US Customs and Border Protection, US Department of Homeland Security. (ccr) (Entered: 10/26/2023)

Oct. 26, 2023

Oct. 26, 2023

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Case Assigned/Reassigned

Oct. 26, 2023

Oct. 26, 2023

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5

MOTION for Temporary Restraining Order or Stay of Agency Action by STATE OF TEXAS. (Attachments: # 1 Appendix Supplemental Appendix, # 2 Proposed Order Granting Temporary Restraining Order)(Walters, Ryan) (Entered: 10/27/2023)

1 Appendix Supplemental Appendix

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2 Proposed Order Granting Temporary Restraining Order

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Oct. 27, 2023

Oct. 27, 2023

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6

REQUEST FOR ISSUANCE OF SUMMONS by STATE OF TEXAS. (Walters, Ryan) (Entered: 10/27/2023)

Oct. 27, 2023

Oct. 27, 2023

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7

Summons Issued as to Juan Bernal. (ccr) (Entered: 10/27/2023)

Oct. 27, 2023

Oct. 27, 2023

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8

NOTICE OF ESCALATING PROPERTY DAMAGE by STATE OF TEXAS re 5 MOTION for Temporary Restraining Order or Stay of Agency Action (Attachments: # 1 Appendix Declaration of Roberto Ortiz Diaz)(Walters, Ryan) (Entered: 10/28/2023)

1 Appendix Declaration of Roberto Ortiz Diaz

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Oct. 28, 2023

Oct. 28, 2023

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9

ORDER GRANTING 5 Motion for TRO Signed by Chief Judge Alia Moses. (ccr) (Entered: 10/30/2023)

Oct. 30, 2023

Oct. 30, 2023

Clearinghouse

Preliminary Injunction Hearing set for 11/7/2023 02:00 PM before Chief Judge Alia Moses, (ccr)

Oct. 30, 2023

Oct. 30, 2023

PACER
10

EXHIBIT - Flash-drive corresponding to docket entry 3.2 Appendix to Plaintiff's Motion for Preliminary Injunction filed by STATE OF TEXAS. (ccr) (Entered: 10/30/2023)

Oct. 30, 2023

Oct. 30, 2023

PACER
11

SUMMONS Returned Executed by STATE OF TEXAS. US Department of Homeland Security served on 10/30/2023, answer due 12/29/2023. (Attachments: # 1 Supplement Summons Return Executed through USAG, # 2 Supplement Summons Return Executed through US District Clerk for Western District of Texas)(Walters, Ryan) (Entered: 10/30/2023)

1 Supplement Summons Return Executed through USAG

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2 Supplement Summons Return Executed through US District Clerk for Western Distric

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Oct. 30, 2023

Oct. 30, 2023

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12

SUMMONS Returned Executed by STATE OF TEXAS. Alejandro Mayorkas served on 10/30/2023, answer due 12/29/2023. (Attachments: # 1 Supplement Summons Return Executed through USAG, # 2 Supplement Summons Return Executed through US District Clerk for Western District of Texas)(Walters, Ryan) (Entered: 10/30/2023)

1 Supplement Summons Return Executed through USAG

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2 Supplement Summons Return Executed through US District Clerk for Western Distric

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Oct. 30, 2023

Oct. 30, 2023

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13

SUMMONS Returned Executed by STATE OF TEXAS. Troy A. Miller served on 10/30/2023, answer due 12/29/2023. (Attachments: # 1 Supplement Summons Return Executed through USAG, # 2 Supplement Summons Return Executed through US District Clerk for Western District of Texas)(Walters, Ryan) (Entered: 10/30/2023)

1 Supplement Summons Return Executed through USAG

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2 Supplement Summons Return Executed through US District Clerk for Western Distric

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Oct. 30, 2023

Oct. 30, 2023

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14

SUMMONS Returned Executed by STATE OF TEXAS. US Border Patrol served on 10/30/2023, answer due 12/29/2023. (Attachments: # 1 Supplement Summons Return Executed through USAG, # 2 Supplement Summons Return Executed through US District Clerk for Western District of Texas)(Walters, Ryan) (Entered: 10/30/2023)

1 Supplement Summons Return Executed through USAG

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2 Supplement Summons Return Executed through US District Clerk for Western Distric

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Oct. 30, 2023

Oct. 30, 2023

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15

SUMMONS Returned Executed by STATE OF TEXAS. US Customs and Border Protection served on 10/30/2023, answer due 12/29/2023. (Attachments: # 1 Supplement Summons Return Executed through US District Clerk for Western District of Texas)(Walters, Ryan) (Entered: 10/30/2023)

1 Supplement Summons Return Executed through US District Clerk for Western Distric

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Oct. 30, 2023

Oct. 30, 2023

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16

SUMMONS Returned Executed by STATE OF TEXAS. Jason Owens served on 10/30/2023, answer due 12/29/2023. (Attachments: # 1 Supplement Summons Return Executed through US District Clerk for Western District of Texas)(Walters, Ryan) (Entered: 10/30/2023)

1 Supplement Summons Return Executed through US District Clerk for Western Distric

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Oct. 30, 2023

Oct. 30, 2023

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17

SUMMONS Returned Executed by STATE OF TEXAS. Juan Bernal served on 10/30/2023, answer due 12/29/2023. (Walters, Ryan) (Entered: 10/30/2023)

Oct. 30, 2023

Oct. 30, 2023

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18

DEFICIENCY NOTICE: re 11 Summons Returned Executed as to USA, (jaw) (Entered: 10/30/2023)

Oct. 30, 2023

Oct. 30, 2023

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19

DEFICIENCY NOTICE: re 12 Summons Returned Executed as to USA, (jaw) (Entered: 10/30/2023)

Oct. 30, 2023

Oct. 30, 2023

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20

SUMMONS Returned Executed by STATE OF TEXAS. Corrected Dkt. 11 - 11.2 (Attachments: # 1 Supplement Summons Return Executed through USAG, # 2 Supplement Summons Return Executed through US District Clerk for Western District of Texas)(Walters, Ryan) (Entered: 10/30/2023)

1 Supplement Summons Return Executed through USAG

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2 Supplement Summons Return Executed through US District Clerk for Western Distric

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Oct. 30, 2023

Oct. 30, 2023

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21

SUMMONS Returned Executed by STATE OF TEXAS. Corrected Dkt. 12 - 12.2 (Attachments: # 1 Supplement Summons Return Executed through USAG)(Walters, Ryan) (Entered: 10/30/2023)

1 Supplement Summons Return Executed through USAG

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Oct. 30, 2023

Oct. 30, 2023

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22

NOTICE of Attorney Appearance by Monroe David Bryant, Jr on behalf of STATE OF TEXAS. Attorney Monroe David Bryant, Jr added to party STATE OF TEXAS(pty:pla) (Bryant, Monroe) (Entered: 10/30/2023)

Oct. 30, 2023

Oct. 30, 2023

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23

Unopposed MOTION for Leave to Exceed Page Limitation by Juan Bernal, Alejandro Mayorkas, Troy A. Miller, Jason Owens, US Border Patrol, US Customs and Border Protection, US Department of Homeland Security. (Attachments: # 1 Exhibit Opposition to Motion for Preliminary Injunction, # 2 Exhibit BeMiller Declaration, # 3 Proposed Order Granting Motion to Exceed Page Limitations)(Eiswerth, Christopher) (Entered: 10/30/2023)

1 Exhibit Opposition to Motion for Preliminary Injunction

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2 Exhibit BeMiller Declaration

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3 Proposed Order Granting Motion to Exceed Page Limitations

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Oct. 30, 2023

Oct. 30, 2023

PACER
24

NOTICE of Attorney Appearance by Christopher A. Eiswerth on behalf of Juan Bernal, Alejandro Mayorkas, Troy A. Miller, Jason Owens, US Border Patrol, US Customs and Border Protection, US Department of Homeland Security. Attorney Christopher A. Eiswerth added to party Juan Bernal(pty:dft), Attorney Christopher A. Eiswerth added to party Alejandro Mayorkas(pty:dft), Attorney Christopher A. Eiswerth added to party Troy A. Miller(pty:dft), Attorney Christopher A. Eiswerth added to party Jason Owens(pty:dft), Attorney Christopher A. Eiswerth added to party US Border Patrol(pty:dft), Attorney Christopher A. Eiswerth added to party US Customs and Border Protection(pty:dft), Attorney Christopher A. Eiswerth added to party US Department of Homeland Security(pty:dft) (Eiswerth, Christopher) (Entered: 10/31/2023)

Oct. 31, 2023

Oct. 31, 2023

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Order on Motion for Leave to File Excess Pages

Nov. 1, 2023

Nov. 1, 2023

PACER

Text Order GRANTING 3 Motion for Leave to File Excess Pages entered by Chief Judge Alia Moses. The Clerk of Court shall docket the Motion for Preliminary Injunction or Stay of Action. (This is a text-only entry generated by the court. There is no document associated with this entry.) (HMlc)

Nov. 1, 2023

Nov. 1, 2023

PACER

Text Order GRANTING 23 Motion for Leave to File Excess Pages entered by Chief Judge Alia Moses. The Clerk of Court shall docket the Opposition to Motion for Preliminary Injunction or Stay of Action. (This is a text-only entry generated by the court. There is no document associated with this entry.) (HMlc)

Nov. 1, 2023

Nov. 1, 2023

PACER
25

NOTICE of Attorney Appearance by Jean Lin on behalf of Juan Bernal, Alejandro Mayorkas, Troy A. Miller, Jason Owens, US Border Patrol, US Customs and Border Protection, US Department of Homeland Security. Attorney Jean Lin added to party Juan Bernal(pty:dft), Attorney Jean Lin added to party Alejandro Mayorkas(pty:dft), Attorney Jean Lin added to party Troy A. Miller(pty:dft), Attorney Jean Lin added to party Jason Owens(pty:dft), Attorney Jean Lin added to party US Border Patrol(pty:dft), Attorney Jean Lin added to party US Customs and Border Protection(pty:dft), Attorney Jean Lin added to party US Department of Homeland Security(pty:dft) (Lin, Jean) (Entered: 11/01/2023)

Nov. 1, 2023

Nov. 1, 2023

PACER
26

NOTICE of Filing of Amended Declaration of Manuel Perez (Dkt. 3-2) by STATE OF TEXAS (Attachments: # 1 Supplement Amended Declaration of Manuel Perez)(Walters, Ryan) (Entered: 11/02/2023)

1 Supplement Amended Declaration of Manuel Perez

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Nov. 2, 2023

Nov. 2, 2023

PACER
27

Motion for leave, filed by STATE OF TEXAS, re 23 Unopposed MOTION for Leave to Exceed Page Limitation filed by Defendant Troy A. Miller, Defendant Alejandro Mayorkas, Defendant US Border Patrol, Defendant US Department of Homeland Security, Defendant US Customs and Border Protection, Defendant Juan Bernal, Defendant Jason Owens (Attachments: # 1 Reply in Support of Motion for Preliminary Injunction, # 2 Appendix, # 3 Proposed Order)(Walters, Ryan) Modified on 11/7/2023 (ccr). (Entered: 11/05/2023)

1 Reply in Support of Motion for Preliminary Injunction

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2 Appendix

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3 Proposed Order

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Nov. 5, 2023

Nov. 5, 2023

PACER
28

NOTICE of Attorney Appearance by Faith Johnson Lowry on behalf of Juan Bernal, Alejandro Mayorkas, Troy A. Miller, Jason Owens, US Border Patrol, US Customs and Border Protection, US Department of Homeland Security. Attorney Faith Johnson Lowry added to party Juan Bernal(pty:dft), Attorney Faith Johnson Lowry added to party Alejandro Mayorkas(pty:dft), Attorney Faith Johnson Lowry added to party Troy A. Miller(pty:dft), Attorney Faith Johnson Lowry added to party Jason Owens(pty:dft), Attorney Faith Johnson Lowry added to party US Border Patrol(pty:dft), Attorney Faith Johnson Lowry added to party US Customs and Border Protection(pty:dft), Attorney Faith Johnson Lowry added to party US Department of Homeland Security(pty:dft) (Lowry, Faith) (Entered: 11/07/2023)

Nov. 7, 2023

Nov. 7, 2023

PACER

Order on Motion for Miscellaneous Relief

Nov. 7, 2023

Nov. 7, 2023

PACER
29

NOTICE of Attorney Appearance by Stephen Ehrlich on behalf of Juan Bernal, Alejandro Mayorkas, Troy A. Miller, Jason Owens, US Border Patrol, US Customs and Border Protection, US Department of Homeland Security. Attorney Stephen Ehrlich added to party Juan Bernal(pty:dft), Attorney Stephen Ehrlich added to party Alejandro Mayorkas(pty:dft), Attorney Stephen Ehrlich added to party Troy A. Miller(pty:dft), Attorney Stephen Ehrlich added to party Jason Owens(pty:dft), Attorney Stephen Ehrlich added to party US Border Patrol(pty:dft), Attorney Stephen Ehrlich added to party US Customs and Border Protection(pty:dft), Attorney Stephen Ehrlich added to party US Department of Homeland Security(pty:dft) (Ehrlich, Stephen) (Entered: 11/07/2023)

Nov. 7, 2023

Nov. 7, 2023

PACER

Text Order GRANTING 27 Motion entered by Chief Judge Alia Moses. The Clerk of Court shall docket the Reply in Support of Motion for Preliminary Injunction or Stay of Action. (This is a text-only entry generated by the court. There is no document associated with this entry.) (HMlc)

Nov. 7, 2023

Nov. 7, 2023

PACER
30

Reply in Support of Motion for Preliminary Injunction or Stay of Action by STATE OF TEXAS (jaw) (Entered: 11/07/2023)

Nov. 7, 2023

Nov. 7, 2023

PACER
32

Proceedings held before Chief Judge Alia Moses: Preliminary Injunction Hearing held on 11/7/2023 (Court Reporter Vickie Garza.)(ccr) (Entered: 11/09/2023)

Nov. 7, 2023

Nov. 7, 2023

PACER
34

Clerk's Exhibit List (ccr) (Entered: 11/09/2023)

Nov. 7, 2023

Nov. 7, 2023

RECAP
31

TRANSCRIPT REQUEST by STATE OF TEXAS for proceedings held on 11/7/23. Proceedings Transcribed: PI Hearing. Court Reporter: Ms. Vickie-Lee Garza. (Walters, Ryan) (Entered: 11/09/2023)

Nov. 9, 2023

Nov. 9, 2023

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33

ORDER. Signed by Chief Judge Alia Moses. (ccr) (Entered: 11/09/2023)

Nov. 9, 2023

Nov. 9, 2023

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36

NOTICE OF ALL PARTIES RE: SECOND PI HEARING by STATE OF TEXAS re 33 Order (Walters, Ryan) (Entered: 11/13/2023)

Nov. 13, 2023

Nov. 13, 2023

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37

Transcript filed of Proceedings held on 11/07/2023, Proceedings Transcribed: Preliminary Injunction Hearing. Court Reporter/Transcriber: VICKIE GARZA, Telephone number: 8303086416. Parties are notified of their duty to review the transcript to ensure compliance with the FRCP 5.2(a)/FRCrP 49.1(a). A copy may be purchased from the court reporter or viewed at the clerk's office public terminal. If redaction is necessary, a Notice of Redaction Request must be filed within 21 days. If no such Notice is filed, the transcript will be made available via PACER without redaction after 90 calendar days. The clerk will mail a copy of this notice to parties not electronically noticed Redaction Request due 12/5/2023, Redacted Transcript Deadline set for 12/15/2023, Release of Transcript Restriction set for 2/12/2024, (vg) (Main Document 37 replaced on 11/15/2023) (jaw). (Entered: 11/14/2023)

Nov. 14, 2023

Nov. 14, 2023

PACER
38

MOTION to Amend/Correct 33 Order by Juan Bernal, Alejandro Mayorkas, Troy A. Miller, Jason Owens, US Border Patrol, US Customs and Border Protection, US Department of Homeland Security. (Attachments: # 1 Exhibit A - Courey Declaration, # 2 Proposed Order)(Eiswerth, Christopher) (Entered: 11/14/2023)

1 Exhibit A - Courey Declaration

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2 Proposed Order

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Nov. 14, 2023

Nov. 14, 2023

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39

ORDER, Preliminary Injunction Hearing set for 11/27/2023 09:30 AM before Chief Judge Alia Moses,), Motions terminated: Granting in part and denying in part the Defendants' motion 38 MOTION to Amend/Correct 33 Order filed by Troy A. Miller, Alejandro Mayorkas, US Border Patrol, US Department of Homeland Security, US Customs and Border Protection, Juan Bernal, Jason Owens.. Signed by Chief Judge Alia Moses. (ccr) (Entered: 11/15/2023)

Nov. 15, 2023

Nov. 15, 2023

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40

NOTICE Regarding Virtual Conference by STATE OF TEXAS re 39 Order,, Set Hearings,, Terminate Motions, (Walters, Ryan) (Entered: 11/16/2023)

Nov. 16, 2023

Nov. 16, 2023

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41

ORDER SETTING VIRTUAL CONFERENCE RE: DOCUMENT PRODUCTION. TRO, AND SECOND P1 HEARING set for 11/21/2023 01:00 PM before Chief Judge Alia Moses. Signed by Chief Judge Alia Moses. (ccr) (Entered: 11/17/2023)

Nov. 16, 2023

Nov. 16, 2023

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42

NOTICE of Attorney Appearance by Robert D. Green on behalf of Juan Bernal, Alejandro Mayorkas, Troy A. Miller, Jason Owens, US Border Patrol, US Customs and Border Protection, US Department of Homeland Security. Attorney Robert D. Green added to party Juan Bernal(pty:dft), Attorney Robert D. Green added to party Alejandro Mayorkas(pty:dft), Attorney Robert D. Green added to party Troy A. Miller(pty:dft), Attorney Robert D. Green added to party Jason Owens(pty:dft), Attorney Robert D. Green added to party US Border Patrol(pty:dft), Attorney Robert D. Green added to party US Customs and Border Protection(pty:dft), Attorney Robert D. Green added to party US Department of Homeland Security(pty:dft) (Green, Robert) (Entered: 11/17/2023)

Nov. 17, 2023

Nov. 17, 2023

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43

NOTICE of Good-Faith Efforts by Juan Bernal, Alejandro Mayorkas, Troy A. Miller, Jason Owens, US Border Patrol, US Customs and Border Protection, US Department of Homeland Security (Attachments: # 1 Exhibit Ex. A, Dismuke Declaration, # 2 Exhibit Ex. B, Blanchard Declaration)(Lowry, Faith) (Entered: 11/21/2023)

1 Exhibit Ex. A, Dismuke Declaration

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2 Exhibit Ex. B, Blanchard Declaration

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Nov. 21, 2023

Nov. 21, 2023

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44

Proceedings held before Chief Judge Alia Moses: Virtual Conference for Scheduling Purposes Hearing held on 11/21/2023 (Court Reporter Vickie Lee Garza.)(ccr) (Entered: 11/21/2023)

Nov. 21, 2023

Nov. 21, 2023

PACER
45

ORDER, Preliminary Injunction Hearing set for 11/27/2023 10:00 AM before Chief Judge Alia Moses. Signed by Chief Judge Alia Moses. (ccr) (Entered: 11/21/2023)

Nov. 21, 2023

Nov. 21, 2023

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46

SUPPLEMENTAL ORDER - It is ORDERED that based on today's virtual conference and the parties' previous filing (ECF No. 36), the temporary restraining order initially issued on October 30, 2023 at 9:30 a.m. and then extended to November 27, 2023 at 9:30 a.m. be extended to November 29, 2023 at 11:59p.m. on the consent of the parties, which will provide the Court enough time to render a timely decision on the pending preliminary injunction motion; and It is FURTHER ORDERED that the Defendants have until November 27, 2023 at 10 a.m. to produce outstanding documents that the Court ordered on November 9, 2023 to be produced, as modified by the Court's November 15, 2023 order, through a virtual link that the Court has already sent to the parties.. Signed by Chief Judge Alia Moses. (ccr) (Entered: 11/21/2023)

Nov. 21, 2023

Nov. 21, 2023

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SUPPLEMENTAL MEMORANDUM by Juan Bernal, Alejandro Mayorkas, Troy A. Miller, Jason Owens, US Border Patrol, US Customs and Border Protection, US Department of Homeland Security. (Attachments: # 1 Appendix Definitions)(Eiswerth, Christopher) (Entered: 11/21/2023)

1 Appendix Definitions

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Nov. 21, 2023

Nov. 21, 2023

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48

SUPPLEMENTAL MEMORANDUM to 33 Order by STATE OF TEXAS. (Walters, Ryan) (Entered: 11/27/2023)

Nov. 27, 2023

Nov. 27, 2023

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49

TRANSCRIPT REQUEST by STATE OF TEXAS for proceedings held on 11/21/2023. Proceedings Transcribed: Video Conference. Court Reporter: Ms. Vickie-Lee Garza. (Walters, Ryan) (Entered: 11/27/2023)

Nov. 27, 2023

Nov. 27, 2023

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50

TRANSCRIPT REQUEST by STATE OF TEXAS for proceedings held on 11/27/23. Proceedings Transcribed: PI Hearing. Court Reporter: Ms. Vickie-Lee Garza. (Walters, Ryan) (Entered: 11/27/2023)

Nov. 27, 2023

Nov. 27, 2023

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52

Proceedings held before Chief Judge Alia Moses: Preliminary Injunction Hearing held on 11/27/2023. (Court Reporter Vickie Garza.)(am3) (Entered: 11/28/2023)

Nov. 27, 2023

Nov. 27, 2023

PACER
51

Sealed Order. Signed by Chief Judge Alia Moses. (ccr) (Entered: 11/28/2023)

Nov. 28, 2023

Nov. 28, 2023

PACER
53

NOTICE of Exhibits Admitted at November 27 Hearing by Juan Bernal, Alejandro Mayorkas, Troy A. Miller, Jason Owens, US Border Patrol, US Customs and Border Protection, US Department of Homeland Security (Attachments: # 1 Appendix Hearing Exhibits)(Lowry, Faith) (Entered: 11/29/2023)

1 Appendix Hearing Exhibits

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Nov. 29, 2023

Nov. 29, 2023

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54

TRANSCRIPT REQUEST by Juan Bernal, Alejandro Mayorkas, Troy A. Miller, Jason Owens, US Border Patrol, US Customs and Border Protection, US Department of Homeland Security for proceedings held on 11/27/2023. Proceedings Transcribed: Second Prelim Inj Hr'g. Court Reporter: Ms. Vickie-Lee Garza. (Eiswerth, Christopher) (Entered: 11/29/2023)

Nov. 29, 2023

Nov. 29, 2023

RECAP
55

TRANSCRIPT REQUEST by Juan Bernal, Alejandro Mayorkas, Troy A. Miller, Jason Owens, US Border Patrol, US Customs and Border Protection, US Department of Homeland Security for proceedings held on 11/21/2023. Proceedings Transcribed: Virtual Conference. Court Reporter: Ms. Vickie-Lee Garza. (Eiswerth, Christopher) (Entered: 11/29/2023)

Nov. 29, 2023

Nov. 29, 2023

RECAP
57

MEMORANDUM OPINION AND ORDER; Order that Plaintiff's Motion for Preliminary Injunction Order or Stay of Agency Action (ECF No. 3-1) is DENIED. Signed by Chief Judge Alia Moses. (Attachments: # 1 Appendix A)(jaw) (Attachment 1 replaced on 11/30/2023 to correct typo in the title) (jaw). (Entered: 11/29/2023)

1 Appendix A

View on RECAP

Nov. 29, 2023

Nov. 29, 2023

Clearinghouse
58

Appeal of Order entered by District Judge 57 by STATE OF TEXAS. ( Filing fee $ 505 receipt number ATXWDC-18151317) (Walters, Ryan) (Entered: 11/30/2023)

Nov. 30, 2023

Nov. 30, 2023

RECAP

**57**NOTICE OF INTERLOCUTORY APPEAL as to 57 Memorandum Opinion and Order, by STATE OF TEXAS. Filing fee $ 505, receipt number ATXWDC-18151317. Per 5th Circuit rules, the appellant has 14 days, from the filing of the Notice of Appeal, to order the transcript. To order a transcript, the appellant should fill out (Transcript Order) and follow the instructions set out on the form. This form is available in the Clerk's Office or by clicking the hyperlink above. (jaw)

Nov. 30, 2023

Nov. 30, 2023

PACER

** 57 **NOTICE OF INTERLOCUTORY APPEAL as to 57 Memorandum Opinion and Order, by STATE OF TEXAS. Filing fee $ 505, receipt number ATXWDC-18151317. Per 5th Circuit rules, the appellant has 14 days, from the filing of the Notice of Appeal, to order the transcript. To order a transcript, the appellant should fill out (Transcript Order) and follow the instructions set out on the form. This form is available in the Clerk's Office or by clicking the hyperlink above. (jaw)

Nov. 30, 2023

Nov. 30, 2023

PACER
59

Opposed MOTION FOR INJUNCTION PENDING APPEAL re Notice of Appeal - Interlocutory,, 57 Memorandum Opinion and Order, 58 Notice of Appeal (E-Filed) by STATE OF TEXAS. (Attachments: # 1 Proposed Order)(Walters, Ryan) (Entered: 11/30/2023)

1 Proposed Order

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Nov. 30, 2023

Nov. 30, 2023

RECAP
60

Response in Opposition to Motion, filed by Juan Bernal, Alejandro Mayorkas, Troy A. Miller, Jason Owens, US Border Patrol, US Customs and Border Protection, US Department of Homeland Security, re 59 Opposed MOTION FOR INJUNCTION PENDING APPEAL re Notice of Appeal - Interlocutory,, 57 Memorandum Opinion and Order, 58 Notice of Appeal (E-Filed) filed by Plaintiff STATE OF TEXAS (Attachments: # 1 Proposed Order)(Eiswerth, Christopher) (Entered: 12/01/2023)

1 Proposed Order

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Dec. 1, 2023

Dec. 1, 2023

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61

DESIGNATION of Record on Appeal by STATE OF TEXAS re Notice of Appeal - Interlocutory,, 58 Notice of Appeal (E-Filed) (Walters, Ryan) (Entered: 12/01/2023)

Dec. 1, 2023

Dec. 1, 2023

RECAP
62

REPLY to Response to Motion, filed by STATE OF TEXAS, re 59 Opposed MOTION FOR INJUNCTION PENDING APPEAL re Notice of Appeal - Interlocutory,, 57 Memorandum Opinion and Order, 58 Notice of Appeal (E-Filed) filed by Plaintiff STATE OF TEXAS (Walters, Ryan) (Entered: 12/02/2023)

Dec. 2, 2023

Dec. 2, 2023

RECAP
63

CORRECTED 61 - TRANSCRIPT REQUEST by STATE OF TEXAS for dates of 11/7/23 and 11/27/23. Proceedings Transcribed: Preliminary Injunction Hearing. Court Reporter: Vickie-Lee Garza.. (Walters, Ryan) Resubmitted to use correct event - Modified on 12/4/2023 (jaw). (Entered: 12/04/2023)

Dec. 4, 2023

Dec. 4, 2023

RECAP
64

Transcript filed of Proceedings held on 11/27/2023, Proceedings Transcribed: Preliminary Injunction Hearing #2g. Court Reporter/Transcriber: VICKIE GARZA, Telephone number: 830-308-6416. Parties are notified of their duty to review the transcript to ensure compliance with the FRCP 5.2(a)/FRCrP 49.1(a). A copy may be purchased from the court reporter or viewed at the clerk's office public terminal. If redaction is necessary, a Notice of Redaction Request must be filed within 21 days. If no such Notice is filed, the transcript will be made available via PACER without redaction after 90 calendar days. The clerk will mail a copy of this notice to parties not electronically noticed Redaction Request due 12/26/2023, Redacted Transcript Deadline set for 1/4/2024, Release of Transcript Restriction set for 3/3/2024, Appeal Record due by 12/19/2023, (vg) (Entered: 12/04/2023)

Dec. 4, 2023

Dec. 4, 2023

PACER
65

Sealed Transcript filed (This transcript is not available electronically) Appeal Record due by 12/19/2023, (vg) (Entered: 12/04/2023)

Dec. 4, 2023

Dec. 4, 2023

PACER
66

Sealed Transcript filed (This transcript is not available electronically) Appeal Record due by 12/19/2023, (vg) (Entered: 12/04/2023)

Dec. 4, 2023

Dec. 4, 2023

PACER
67

USCA Appeal Info Sheet received. USCA Case Number 23-50869 for Notice of Appeal - Interlocutory, filed by STATE OF TEXAS. (jaw) (Entered: 12/10/2023)

Dec. 4, 2023

Dec. 4, 2023

RECAP
68

ORDER of USCA (certified copy) ; re ORDER that Appellant's opposed motion for a temporary administrative stay is GRANTED Notice of Appeal - Interlocutory,, (jaw) (Entered: 12/10/2023)

Dec. 4, 2023

Dec. 4, 2023

RECAP
69

ORDER of USCA (certified copy) ; re Notice of Appeal - Interlocutory. (jaw) (Entered: 12/20/2023)

Dec. 19, 2023

Dec. 19, 2023

Clearinghouse
70

Transcript filed of Proceedings held on 11/21/2023, Proceedings Transcribed: Preliminary Injunction Hearing #1. Court Reporter/Transcriber: VICKIE GARZA, Telephone number: (830) 308-6416. Parties are notified of their duty to review the transcript to ensure compliance with the FRCP 5.2(a)/FRCrP 49.1(a). A copy may be purchased from the court reporter or viewed at the clerk's office public terminal. If redaction is necessary, a Notice of Redaction Request must be filed within 21 days. If no such Notice is filed, the transcript will be made available via PACER without redaction after 90 calendar days. The clerk will mail a copy of this notice to parties not electronically noticed. Redaction Request due 1/10/2024, Redacted Transcript Deadline set for 1/20/2024, Release of Transcript Restriction set for 3/19/2024, Appeal Record due by 1/4/2024, (jaw) (Entered: 12/20/2023)

Dec. 20, 2023

Dec. 20, 2023

PACER

Appeal Remark: Interlocutory Appeal Record has been submitted electronically and is pending USCA Approval; re Notice of Appeal - Interlocutory. (jaw)

Dec. 20, 2023

Dec. 20, 2023

PACER
74

ORDER of USCA (certified copy) ; re Notice of Appeal - Interlocutory,, (jaw) (Entered: 01/04/2024)

Dec. 20, 2023

Dec. 20, 2023

RECAP
72

Opposed MOTION to Stay Case Pending Appeal, Unopposed MOTION for Extension of Time to File Answer / Response to Complaint by Juan Bernal, Alejandro Mayorkas, Troy A. Miller, Jason Owens, US Border Patrol, US Customs and Border Protection, US Department of Homeland Security. (Attachments: # 1 Proposed Order)(Eiswerth, Christopher) (Entered: 12/21/2023)

1 Proposed Order

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Dec. 21, 2023

Dec. 21, 2023

RECAP
73

ORDER DENYING 72 Motion to Stay Case; GRANTING 72 Motion for Extension of Time to Answer ; All Defendants ; It is FURTHER ORDERED that, pursuant to Federal Rule of Civil Procedure 6(b)(l)(A) and in the interest of judicial economy, the Defendants have 90 days from December 22, 2023 to respond to the Complaint. The matters pending in this Court may be clarified by any decision by the Fifth Circuit Court of Appeals. Signed by Chief Judge Alia Moses. (ccr) (Entered: 12/22/2023)

Dec. 22, 2023

Dec. 22, 2023

RECAP
75

ORDER of USCA (certified copy) ; re Notice of Appeal - Interlocutory,, (jaw) (Entered: 01/04/2024)

Dec. 28, 2023

Dec. 28, 2023

RECAP

Certification of the Electronic Interlocutory Record on Appeal has been accepted by the 5th Circuit re Notice of Appeal - Interlocutory. Attorneys are advised that they may now download the EROA from the Fifth Circuit CM/ECF site by following these instructions here (jaw)

Jan. 2, 2024

Jan. 2, 2024

PACER

Appeal Record Accepted and Available Electronically

Jan. 4, 2024

Jan. 4, 2024

PACER
76

Notice from USCA (certified copy) ; re Notice of Appeal - Interlocutory,, (jaw) (Entered: 01/17/2024)

Jan. 9, 2024

Jan. 9, 2024

RECAP
77

NOTICE of Limited Remand by STATE OF TEXAS (Attachments: # 1 Exhibit A-Fifth Circuit Limited Remand Order)(Walters, Ryan) (Entered: 01/28/2024)

1 Exhibit A-Fifth Circuit Limited Remand Order

View on PACER

Jan. 28, 2024

Jan. 28, 2024

PACER
78

ORDER, Evidentiary Hearing set for 3/4/2024 09:00 AM and 3/5/2024 09:00 AM before Chief Judge Alia Moses. Signed by Chief Judge Alia Moses. (ccr) (Entered: 01/29/2024)

Jan. 29, 2024

Jan. 29, 2024

RECAP
79

NOTICE of Attorney Appearance by Ryan G. Kercher on behalf of STATE OF TEXAS. Attorney Ryan G. Kercher added to party STATE OF TEXAS(pty:pla) (Kercher, Ryan) (Entered: 01/30/2024)

Jan. 30, 2024

Jan. 30, 2024

PACER
80

UNPUBLISHED ORDER of USCA (certified copy) ; re Notice of Appeal - Interlocutory; Accordingly, we HOLD IN ABEYANCE the appeal in No. 23-50869 and REMAND to the district court for 60 days in order to developthe factual record as set forth in this order. (jaw) (Entered: 02/06/2024)

Feb. 2, 2024

Feb. 2, 2024

RECAP
81

It is ORDERED that the parties inform the Court by February 29, 2024 whether they intend to change the name of any party due to changes in duty stations of any named party. Signed by Chief Judge Alia Moses. (jaw) (Entered: 02/07/2024)

Feb. 7, 2024

Feb. 7, 2024

RECAP
82

It is ORDERED that the parties provide to the Court any and all documents involving communications, including but not limited to reports and emails, regarding or referencing the Plaintiff's border wire barriers or Plaintiff's other barriers, including but not limited to concertina wire barriers, as well as any and all documents which regard or reference impediments to Federal agents' performance as a result of the barriers; It is FURTHER ORDERED that the time period for the foregoing document production range from and including November 9, 2023, to the present; It is FURTHER ORDERED that the parties provide this document production under seal, ex parte, and without any redaction so that the Court reviews these documents in camera; It is FURTHER ORDERED that, as an emphasis, the Court will not exchange this document production among the parties unless the parties e-file a document expressing affirmative consent to same; It is FURTHER ORDERED that where a privilege is asserted, the parties identify that privilege; It is FURTHER ORDERED that the parties' production of these documents waives no privilege; and It is FURTHER ORDERED that the parties produce these documents by February 21, 2024, through a virtual link that the Court will send to the parties, and that the parties have a duty to supplement these documents through that virtual link. Signed by Chief Judge Alia Moses. (jaw) (Entered: 02/07/2024)

Feb. 7, 2024

Feb. 7, 2024

RECAP
83

RESPONSE IDENTIFYING FACTUAL ISSUES to 78 Order, Set Hearings by STATE OF TEXAS. (Dyer, Heather) (Entered: 02/15/2024)

Feb. 15, 2024

Feb. 15, 2024

RECAP
84

It is ORDERED that the parties at the March 4, 2024 and March 5, 2024 hearings be prepared to discuss whether the Fifth Circuit Court of Appeals remanded this case for the Court to make new factual findings only, or to make legal determinations in light of new factual findings to be made after taking evidence. It is FURTHER ORDERED that the parties at the March 4, 2024 and March 5, 2024 hearings be prepared to discuss how new factual findings may impact appellate review of the Court's November 29, 2023 preliminary injunction decision, considering that the evidence to be taken at the hearings will not have been before this Court before the preliminary injunction decision was entered. It is FURTHER ORDERED that at the March 4, 2024 and March 5, 2024 hearings, the parties submit photographs, videos, and maps needed to make new factual findings. It is FURTHER ORDERED that the scope of the March 4, 2024 and March 5, 2024 hearings include all the issues raised in the parties' joint brief [ECF No. 83], including but not limited to: A. The Defendants' use of and access to Shelby Park and surrounding areas; B. The Plaintiff's control of municipal and non-municipal land in and around Eagle Pass, Texas since November 29, 2023; C. The scope of the physical area that the Plaintiff has occupied in and near the Shelby Park area since November 29, 2023; D. The Defendants' access to the Rio Grande in and near the Shelby Park area since November 29, 2023, including but not limited to boat ramp access;E. The Defendants' ability to surveil the border, patrol the border, apprehend migrants,process migrants, and perform other duties in and near the Shelby Park area sinceNovember 29, 2023;F. The Defendants' ability to respond to medical emergencies in and near Eagle Pass,Texas since November 29, 2023, including the Defendants' ability to access ShelbyPark and surrounding areas on or about January 12, 2024;G. Events in and near the Shelby Park area on or about January 12, 2024, including butnot limited to migrant drownings; andH. The frequency of migrant crossings in and near Eagle Pass, Texas since November 29,2023.. Signed by Chief Judge Alia Moses. (jaw) (Entered: 02/16/2024)

Feb. 16, 2024

Feb. 16, 2024

RECAP
85

Unopposed MOTION to Substitute Pursuant to FRCP 25(d) by STATE OF TEXAS. (Attachments: # 1 Proposed Order Granting Substitution)(Bryant, Monroe) (Entered: 02/27/2024)

1 Proposed Order Granting Substitution

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Feb. 27, 2024

Feb. 27, 2024

RECAP
86

DEFICIENCY NOTICE: re 85 Unopposed MOTION to Substitute Pursuant to FRCP 25(d) (ccr) (Entered: 02/27/2024)

Feb. 27, 2024

Feb. 27, 2024

PACER
87

Unopposed MOTION to Substitute Pursuant to FRCP 25(d) by STATE OF TEXAS. (Attachments: # 1 Proposed Order Granting Substitution)(Bryant, Monroe) (Entered: 02/27/2024)

Feb. 27, 2024

Feb. 27, 2024

PACER
88

NOTICE of Attorney Appearance by Jacob Edward Przada on behalf of STATE OF TEXAS. Attorney Jacob Edward Przada added to party STATE OF TEXAS(pty:pla) (Przada, Jacob) (Entered: 02/29/2024)

Feb. 29, 2024

Feb. 29, 2024

PACER
89

ORDER It is ORDERED that the Plaintiff's unopposed motion to substitute [ECF No. 87] be GRANTED. It is FURTHER ORDERED that Robert Danley substitute Juan Bernal as the Chief Patrol Agent, Del Rio Sector of the U.S. Border Patrol, in his official capacity. It is FURTHER ORDERED that all papers filed hereafter name Robert Danley rather than Juan Bernal as the Chief Patrol Agent, Del Rio Sector of the U.S. Border Patrol.It is FURTHER ORDERED that the Clerk of the Court amend the docket sheet to reflect this substitution. 87 Motion to Substitute Signed by Chief Judge Alia Moses. (aa) (Entered: 03/05/2024)

March 4, 2024

March 4, 2024

PACER
91

Proceedings held before Chief Judge Alia Moses: Evidentiary Hearing held on 3/4/2024. Hearing recessed to 3/5/2024 at 9:00 AM (Court Reporter Vickie Lee Garza.)(jaw) (Entered: 03/11/2024)

March 4, 2024

March 4, 2024

PACER

Case Details

State / Territory: Texas

Case Type(s):

Immigration and/or the Border

Key Dates

Filing Date: Oct. 24, 2023

Case Ongoing: Yes

Plaintiffs

Plaintiff Description:

State of Texas

Plaintiff Type(s):

State Plaintiff

Public Interest Lawyer: No

Filed Pro Se: No

Class Action Sought: No

Class Action Outcome: Not sought

Defendants

Department of Homeland Security, Federal

Defendant Type(s):

Jurisdiction-wide

Case Details

Causes of Action:

Administrative Procedure Act, 5 U.S.C. §§ 551 et seq.

Ex parte Young (federal or state officials)

Available Documents:

Trial Court Docket

Complaint (any)

Injunctive (or Injunctive-like) Relief

Any published opinion

Outcome

Prevailing Party: None Yet / None

Nature of Relief:

Preliminary injunction / Temp. restraining order

Source of Relief:

Litigation

Content of Injunction:

Preliminary relief granted

Issues

General/Misc.:

Barrier Removal

Loss or damage to property

Immigration/Border:

Border police

Border wall