Court of Appeals of Texas, Third District, Austin
Texas Department of Family and Protective Services; Henry Whitman, in His Official Capacity as DFPS Commissioner; Texas Health and Human Services Commission; Charles Smith, in his Official Capacity as HHSC Executive Commissioner; Corrections Corporation of America; and The GEO Group, Inc., Appellants
Grassroots Leadership, Inc.; Gloria Valenzuela; E. G. S., for herself and as next friend for A. E. S. G.; F. D. G., for herself and as next friend for N. R. C. D.; Y. E. M. A., for herself and as next friend for A. S. A.; Y. R. F., for herself and as next friend for C. R. R.; S. J. M. G., for herself and as next friend for J. C. M.; K. G. R. M., for herself and as next friend for A. V. R.; C. R. P., for herself and as next friend for A. N. C. P.; B. E. F. R., for herself and as next friend for N. S. V.; S. E. G. E., for herself and as next friend for G. E. A.; Leser Julieta Lopez Herrera, for herself and as next friend for A. B.; and Rose Guzman de Marquez, for herself and as next friend for D. R., Appellees
THE 353RD DISTRICT COURT OF TRAVIS COUNTY NO.
D-1-GN-15-004336, THE HONORABLE KARIN CRUMP, JUDGE PRESIDING
Chief Justice Rose, Justices Goodwin, Baker, Triana, Kelly,
DISSENTING OPINION TO DENIAL OF EN BANC
D. Triana, Justice
case involves a challenge to a rule adopted by the Texas
Department of Family and Protective Services (DFPS) that
authorizes the State to issue child-care-center licenses to
immigrant detention facilities in Texas known as "family
residential centers" (FRCs). The FRCs are operated by
private prison companies under contract with the federal
government, specifically U.S. Immigration and Customs
Enforcement (ICE). Appellees, who were plaintiffs in the
court below (Plaintiffs), challenged the validity of the rule
on several grounds, including that the rule exceeded
DFPS's statutory authority, prolonged the amount of time
that children may be detained in the facilities, and allowed
children to be detained in conditions that endangered their
safety. Appellants, who were defendants in the court below
(Defendants), filed pleas to the jurisdiction asserting that
Plaintiffs lacked standing to assert their claims. The
district court denied the pleas to the jurisdiction and
declared the rule invalid. Defendants appealed the district
September 5, 2018, the appeal was submitted on oral argument
to this Court. On November 28, 2018, the Court reversed the
district court's judgment and rendered judgment granting
Defendants' pleas to the jurisdiction, concluding that
all Plaintiffs lacked standing to assert their claims.
See Texas Dep't of Family & Protective Servs. v.
Grassroots Leadership, Inc., No. 03-18-00261-CV, 2018
Tex.App. LEXIS 9643, at *18 (Tex. App.-Austin Nov. 28, 2018,
no pet. h.) (mem. op.). On December 14, 2018, the Court
overruled Plaintiffs' motion for rehearing.
January 11, 2019, Plaintiffs filed a motion for en banc
reconsideration. Today, three of the six justices on this
Court have voted to grant that motion and three have voted to
deny that motion, resulting in the denial of en banc
reconsideration. See Tex. R. App. P. 49.7 (requiring
approval of majority of court before appeal may be
reconsidered en banc). Because I would grant the motion, I
respectfully dissent from that denial.
banc consideration of a case is not favored and should not be
ordered unless necessary to secure or maintain uniformity of
the court's decisions or unless extraordinary
circumstances require en banc consideration."
Tex.R.App.P. 41.2(c). The rules do not define what
constitutes "extraordinary circumstances," and
courts have discretion to determine whether such
circumstances exist in a given case. See Chakrabarty v.
Ganguly, 573 S.W.3d 413, 415-16 & n4 (Tex App-Dallas
2019, no pet) ("The standard set forth in Rule 41 is
sufficiently broad to afford the Court the discretion to
consider a case en banc 'if the circumstances require and
the court votes to do so'" (quoting Wal-Mart Stores,
Inc v Miller, 102 S.W.3d 706, 708 n1 (Tex 2003)) I agree with
former Chief Justice Woodie Jones that "extraordinary
circumstances" would include "addressing issues
that are highly significant to the public or in which the
public has a high level of interest" Twigland Fashions,
Ltd v Miller, 335 S.W.3d 206, 226 (Tex App-Austin 2010, no
pet) (Jones, CJ, concurring in denial of en banc reh'g).
en banc reconsideration based on "extraordinary
circumstances" is rare but not unprecedented. For
example, in Lawrence v. State, 41 S.W.3d 349 (Tex.
App.-Houston [14th Dist.] 2001, pet. ref'd),
rev'd, 539 U.S. 558, 579 (2003), the Houston
Fourteenth Court of Appeals granted en banc reconsideration
to determine whether a Texas statute criminalizing certain
sexual conduct between consenting adults was facially
unconstitutional. In Rodriguez v. Cuellar, 143
S.W.3d 251 (Tex. App.-San Antonio 2004, pet. dism'd), the
San Antonio Court of Appeals, in an opinion authored by
current Texas Supreme Court Justice Paul Green, granted en
banc reconsideration to determine whether the trial court had
jurisdiction to determine the merits of a contentious federal
election contest. Both cases addressed issues of statewide
and arguably national importance that were "highly
significant to the public or in which the public ha[d] a high
level of interest" at the time.
case addresses state policies that affect the length and
conditions of detention faced by immigrant children and their
mothers in Texas. The detention of immigrant families in
Texas and elsewhere has received extensive news coverage and
analysis in both state and national media outlets for several
years, dating back to the previous presidential
administration and intensifying during the current
administration. There are few, if any, issues in which the
public has shown a higher level of sustained interest. This
case also touches on the relationship between state
administrative law and federal immigration
policy and thus could have far-reaching legal and
policy ramifications in future cases, both here in Texas and
in other states where immigrant children may be
detained. Given the continued statewide and national
significance of these issues, I believe it is imperative that
the entire Court hears and decides this appeal.
regard to the merits of the Court's opinion, I agree with
the Court that Plaintiffs Grassroots Leadership, Inc., a
non-profit organization focused on "advocating for
policies that reduce reliance on incarceration and
detention," and Gloria Valenzuela, the owner of a
child-care center located in El Paso that has no connection
to the immigrant detention centers at issue in this case,
lack standing to challenge the DFPS rule. See Grassroots
Leadership, Inc., 2018 Tex.App. LEXIS 9643, at *8-13.
However, I would conclude that the Detainee Plaintiffs have
standing to assert their claims.
a component of subject-matter jurisdiction,
"'requires a concrete injury to the plaintiff and a
real controversy between the parties that will be resolved by
the court.'" Meyers v. JDC/Firethorne,
Ltd., 548 S.W.3d 477, 484 (Tex. 2018) (quoting
Heckman v. Williamson Cty., 369 S.W.3d 137, 150
(Tex. 2012)). Stated another way, to have standing,
"'[a] plaintiff must allege personal injury fairly
traceable to the defendant's allegedly unlawful conduct
and likely to be redressed by the requested
relief.'" Id. at 485. "As for the
injury itself, it 'must be concrete and particularized,
actual or imminent, not hypothetical.'"
Heckman, 369 S.W.3d at 155.
concern is with a party's right to initiate a lawsuit and
the trial court's corresponding power to hear the case
ab initio." Texas Ass'n of Business v.
Texas Air Control Bd., 852 S.W.2d 440, 446 n.9 (Tex.
1993). Thus, "[s]tanding is determined at the time suit
is filed in the trial court, and subsequent events do not
deprive the court of subject matter jurisdiction."
Id. In determining whether a plaintiff has standing,
"[w]e construe the plaintiff's pleadings liberally,
taking all factual assertions as true, and look to the
plaintiff's intent." Heckman, 369 S.W.3d at
150 (citing Texas Dep't of Parks & Wildlife v.
Miranda, 133 S.W.3d 217, 226 (Tex. 2004)).
Detainee Plaintiffs consist of eleven mothers and their minor
children who were detained at the time suit was filed in the
two immigrant detention centers in Texas that are licensed
under the DFPS rule. Detainee Plaintiffs allege that the
licensure of the facilities allowed the children to be
detained for longer periods of time and to sleep in bedrooms
with unrelated adults, which violates the children's
privacy rights and exposes them to the risk of sexual
assault. This risk of harm is not speculative or
hypothetical. One mother testified at a preliminary hearing
that when she and her 12-year-old daughter were detained at
one of the facilities, an adult woman had touched "her
[daughter] on her private parts." Additionally, there
was expert testimony admitted at the hearing tending to show
that the negative psychological effects of detention on
children are severe and that the negative effects increase in
severity the longer that children are detained. I would
conclude on this record that the Detainee Plaintiffs
sufficiently alleged a concrete and particularized injury to
the minor children who were detained at the facilities.
See Monsanto Co. v. Geertson Seed Farms, 561 U.S.
139, 155 (2010) (concluding that "significant risk"
of injury from agency action, even if injury did not occur,
was "sufficiently concrete to satisfy the injury-in-fact
prong of the constitutional standing analysis");
Crosstex N. Tex. Pipeline, L.P. v. Gardiner, 505
S.W.3d 580, 594 (Tex. 2016) ("The law has recognized
numerous types of legal injuries, including injuries to a
person's . . . right to privacy . . . ."); see
also Billings v. Atkinson, 489 S.W.2d 858, 861 (Tex.
1973) ("Damages for mental suffering are recoverable
without the necessity of showing actual physical injury in a
case of willful invasion of the right of privacy because the
injury is essentially mental and subjective, not actual harm
done to the plaintiff's body.").
also conclude that the injury is "fairly traceable"
to the FRC rule and Defendants. The Court concludes that it
is not, reasoning that "the length of detention is
traceable to federal immigration policy and the
Flores Settlement Agreement's requirement that
state facilities detaining minors be licensed."
Grassroots Leadership, Inc., 2018 Tex.App. LEXIS
9643, at *16. However, the Court's conclusion is contrary
to both United States and Texas Supreme Court precedent
recognizing that an injury can have multiple causes and that
an injury is traceable to a party so long as the party
"contributed" to the injury in some way. See,
e.g., Massachusetts v. E.P.A., 549 U.S. 497,
523 (2007) (concluding that agency contributed to state's
injury from global warming because of agency's failure to
regulate greenhouse gases); Bennett v. Spear, 520
U.S. 154, 168-69 (1997) (concluding that agency's
"determinative or coercive effect upon the action of
someone else" contributed to plaintiff's injury);
Heckman, 369 S.W.3d at 157 (concluding that