Texas Department of Family and Protective Services; Stephanie Muth, in Her Official Capacity as DFPS Commissioner; Texas Health and Human Services; Cecile Erwin Young, in Her Official Capacity as HHSC Executive Commissioner; Corrections Corporation of America; and The GEO Group, Inc., Appellants v. 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., Appellees
NO. 03-18-00261-CV
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
February 10, 2023
ON REMAND; FROM THE 353RD DISTRICT COURT OF TRAVIS COUNTY NO. D-1-GN-15-004336, THE HONORABLE KARIN CRUMP, JUDGE PRESIDING
This cause returns to us on remand from the Texas Supreme Court. See Grassroots Leadership, Inc. v. Texas Dep‘t of Fam. & Protective Servs., 646 S.W.3d 815, 821 (Tex. 2022) (per curiam). In our prior review of this cause, we determined that the plaintiffs—including individuals previously detained in two Texas immigration detention centers—did not have standing to challenge a rule promulgated by the Texas Department of Family and Protective1 Services and we therefore did not reach the merits of the plaintiffs’ claims. See Texas Dep‘t of Fam. & Protective Servs. v. Grassroots Leadership, No. 03-18-00261-CV, 2018 WL 6187433, at *7 (Tex. App.—Austin Nov. 28, 2018) (mem. op.), rev‘d, 646 S.W.3d at 821. The supreme court reversed our judgment, determining that the former detainees have standing to challenge the rule, and remanded to us “for consideration of the remaining jurisdictional issues and the merits, as appropriate.” Grassroots Leadership, 646 S.W.3d at 821. On remand, we will reverse and vacate the trial court‘s final judgment
BACKGROUND
While the factual and procedural background of this dispute is outlined in depth in the supreme court‘s opinion, see id. at 818–19, we recount it briefly as necessary to frame the issues before us.
In this lawsuit, the plaintiffs—mothers and their children detained at two Texas immigration detention centers, a day-care operator, and an organization representing the detainees’ interests challenge a Department2 licensing rule governing immigration detention centers. The private prison companies operating the detention centers, known as the Dilley and Karnes centers, intervened as defendants.
In 2014, U.S. Immigration and Customs Enforcement (ICE) began to detain undocumented families with children at Dilley and Karnes. In 2015, a federal court enjoined the facilities from detaining the families, finding that they lacked appropriate child-care licenses and had violated a federal consent decree requiring that such facilities be state-licensed when housing detained minors. Flores v. Johnson, 212 F. Supp. 3d 864, 877–80 (C.D. Cal. 2015), aff‘d in relevant part sub nom. Flores v. Lynch, 828 F.3d 898, 908–10 (9th Cir. 2016).
The Department then promulgated a rule, first on an emergency basis and then formally, establishing licensing requirements for what it defined as “family residential centers” (FRCs) and designating FRCs as a type of general residential operation (GRO) that “must comply with all associated requirements for GROs” except for certain variances, including those provided for in the rule. See
The plaintiffs allege that Dilley and Karnes have permitted unrelated adults to share bedrooms with children in reliance on the FRC Rule, that one minor child was sexually assaulted while sharing her room with an unrelated adult, and that the FRC Rule has resulted in longer detention periods4 at the centers, which harms children. They sought a permanent injunction and declaration that the FRC Rule is invalid for several reasons, including that the Department lacked statutory authority to promulgate it.
The defendants filed pleas to the jurisdiction, contending that the plaintiffs lack
The defendants appealed, and this Court reversed the trial court‘s determination as to the plaintiffs’ standing, thus not reaching the merits of the rule challenge. See Grassroots Leadership, 2018 WL 6187433, at *7. The supreme court reversed our holding as to the standing of the detainees5 and remanded to us for consideration of the issues we did not reach. See Grassroots Leadership, 646 S.W.3d at 821. We therefore consider the jurisdictional issues we did not reach and, if necessary, the remaining appellate issues—including the merits of the plaintiffs’ rule challenge.
DISCUSSION
Whether the detainees’ claims are moot
We first consider appellants’ contention, which we did not reach in our prior opinion and which is encompassed within their respective first issues, that because the detainees admittedly are no longer detained at Karnes and Dilley, this dispute has become moot. Appellants cite the general standing rule requiring an actual controversy to exist between the parties at every stage of the legal proceedings, including the appeal, and providing that if a controversy ceases to exist, the case becomes moot. See Williams v. Lara, 52 S.W.3d 171, 184 (Tex. 2001) (determining that inmates’ release from county jail rendered their challenge to jail conditions moot); see also Electric Reliability Council of Tex., Inc. v. Panda Power Generation Infrastructure Fund, LLC, 619 S.W.3d 628, 634–35 (Tex. 2021) (listing ways that case may become moot). Mootness is a jurisdictional issue that appellate courts must consider sua sponte even if litigants do not raise it. See State ex rel. Best v. Harper, 562 S.W.3d 1, 7 (Tex. 2018).
Appellees respond that the detainees have been paroled or released on bond since the outset of this lawsuit, and that their bond or parole can be revoked at any time, with or without cause, see
In contrast, here—as appellants argue in their briefs—there is no evidence explaining the circumstances or conditions, if any, of the detainees’ release. Evidence in the record indicates that about 97% of those detained at Karnes are “released into the community,” without further explanation. Other evidence indicates that the majority of those detained at Dilley and Karnes are ultimately released—either to further pursue asylum or because they have received a favorable asylum determination. While the parties agree that detainees reside at Dilley and Karnes while under a federal deportation order, many of them file asylum claims, which are at various stages of processing during their detention. As to the specific detainees who are the plaintiffs below, appellees merely argue in their brief that “[t]hey have all since been paroled or released on bond,” but they cite no evidence in the record or otherwise supporting that claim. In contrast, appellants identify undisputed evidence in the record indicating merely that the detainee appellees are no longer residents of the facilities, rendering their controversy no longer live and thus moot by definition. See Williams, 52 S.W.3d at 184. We therefore cannot conclude, on this record, that appellees’ status is analogous to that of the detainees in In re Hutto Family Detention Center. See 2007 WL 9757682, at *2. We thus turn to appellees’ argument that even if their claims are moot, one of the available exceptions to the mootness doctrine applies.
The first exception they cite is known as the “capable of repetition yet evading review” exception. See Texas A&M Univ.–Kingsville v. Yarbrough, 347 S.W.3d 289, 290 (Tex. 2011). This “rare” exception applies only when (1) the injury is of such short duration that the plaintiff cannot obtain review before the issue becomes moot and (2) there is a reasonable expectation that the same action will occur again to the same plaintiff if the issue is not considered by the courts. Id.; see also City of Los Angeles v. Lyons, 461 U.S. 95, 109 (1983) (“[T]he capable-of-repetition doctrine applies only in exceptional situations, and generally only where the named plaintiff can make a reasonable showing that he will again be subjected to the alleged illegality.“).
We conclude that the first prong of this exception is met because the evidence establishes that the average length of detention is eleven days, a period too short to complete litigation. See Williams, 52 S.W.3d at 184 (holding that where plaintiff challenged conditions of pre-trial confinement, duration of confinement was too short to complete litigation and thus satisfied first prong); Diop v. ICE, 656 F.3d 221, 227 (3rd Cir. 2011) (holding that immigrant‘s claim met first prong).
As to the second prong, however, and as noted above, appellees do not cite any evidence in the record supporting their claim that these same former detainees are reasonably likely to be detained at Dilley or Karnes again. Specifically, they cite no evidence concerning the circumstances under
We next consider whether appellees’ second asserted exception to mootness applies: the public-interest exception. This Court and some of our sister courts have recognized this exception, which expands the capable-of-repetition exception to include parties other than those involved in the current case. City of Austin, 2021 WL 1313349, at *7; see NextEra Energy, Inc. v. Public Util. Comm‘n, No. 03-19-00425-CV, 2020 WL 4929778, at *4 (Tex. App.—Austin Aug. 21, 2020, pet. denied) (mem. op.) (recognizing availability of exception in appropriate cases); Meeker v. Tarrant Cnty. Coll. Dist., 317 S.W.3d 754, 761–62 (Tex. App.—Fort Worth 2010, pet. denied) (discussing exceptions’ “common element“); Texas Dep‘t of Pub. Safety v. LaFleur, 32 S.W.3d 911, 914 (Tex. App.—Texarkana 2000, no pet.) (recognizing exception and applying it in case involving revocation of concealed-handgun permit because, even though issue became moot when license expired, issue was of “considerable public interest” involving “large number of people licensed to carry guns in Texas“). The public-interest exception “allows appellate review of a question of considerable public importance if that question is capable of repetition between either the same parties or other members of the public but for some reason evades appellate review.” University Interscholastic League v. Buchanan, 848 S.W.2d 298, 304 (Tex. App.—Austin 1993, no writ); see also Federal Deposit Ins. Corp. v. Nueces County, 886 S.W.2d 766, 767 (Tex. 1994) (recognizing that some courts of appeals have adopted exception but not reaching issue of viability of public-interest exception).
We conclude that the question of the FRC Rule‘s validity, including the detention-center conditions and lengthened detention periods it permits, is one of considerable importance to the public. For years federal immigration policy has been a subject of great public interest and especially so beginning in 2014 when ICE began detaining all undocumented female-headed families. See Flores, 212 F. Supp. 3d at 869; see also Flores, 828 F.3d at 901 (noting that issues underlying appeal—whether Dilley and Karnes had violated Flores consent decree—“touch on matters of national importance“). Evidence in the record demonstrates that Dilley and Karnes have detained thousands of immigrants, including children, with more than 5,000 new people detained at Dilley in the month of September 2016 alone. Further, the well-being and safety of children, in and of itself, is an issue of considerable public interest, see In re A.V., 113 S.W.3d 355, 361 (Tex. 2003) (recognizing state‘s duty to protect safety and welfare of children); Golden Spread Council, Inc. v. Akins, 926 S.W.2d 287, 291–92 (Tex. 1996) (recognizing legislature‘s strong policy and public interest in protecting children from
We have already determined that detention periods at Dilley and Karnes are generally of such short duration as to evade appellate review of the challenged conditions there, which stem from the FRC Rule, and it is reasonably foreseeable that future detainees will experience the effects of the FRC Rule while detained at Dilley and Karnes. For these reasons, we hold that the public-interest exception applies to the plaintiffs’ claims, and therefore this dispute is not moot. See Buchanan, 848 S.W.2d at 304. We accordingly turn to the merits of appellees’ rule challenge.
Whether the trial court properly determined that the FRC Rule is invalid
In their respective second issues, appellants contend that the trial court improperly determined that the FRC Rule is invalid when it granted appellees’ motion for summary judgment and denied theirs on the plaintiffs’ claim for declaratory relief under the APA. We review a trial court‘s summary judgment de novo. See Travelers Ins. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010). When both parties move for summary judgment on the same issue and the trial court grants one motion and denies the other, we consider the summary-judgment evidence presented by both sides; determine all questions presented; and, if we determine that the trial court erred, render the judgment the trial court should have rendered. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005).
State administrative agencies have only those powers that the legislature expressly confers upon them and those implied powers that are reasonably necessary to carry out their express functions or duties. See Public Util. Comm‘n v. City Pub. Serv. Bd., 53 S.W.3d 310, 315 (Tex. 2001). Absent specific or implied statutory authority, an agency rule is invalid. Id. Furthermore, an agency may not exercise what is effectively a new power based on a claim that the exercise is expedient for administrative purposes. Id. To establish a rule‘s facial invalidity, a challenger must show that the rule (1) contravenes specific statutory language; (2) is counter to the statute‘s general objectives; or (3) imposes additional burdens, conditions, or restrictions in excess of or inconsistent with the relevant statutory provisions. Texas Ass‘n of Acupuncture & Oriental Med. v. Texas Bd. of Chiropractic Exam‘rs, 524 S.W.3d 734, 739 (Tex. App.—Austin 2017, no pet.); see also
Determining the validity of a rule requires us to construe the statutory language from which the agency‘s authority purportedly flows. Texas Orthopaedic Ass‘n v. Texas State Bd. of Podiatric Med. Exam‘rs, 254 S.W.3d 714, 719–20 (Tex. App.—Austin 2008, pet. denied). In construing a statute, our primary objective is to give effect to the legislature‘s intent. Liberty Mut. Ins. v. Adcock, 412 S.W.3d 492, 494 (Tex. 2013). “The ‘surest guide to what lawmakers intended’ is the enacted language of a statute.” Youngkin v. Hines, 546 S.W.3d 675, 680 (Tex. 2018) (quoting Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 463 (Tex. 2009)). We defer to the agency‘s construction of a statute “only when the statutory language is ambiguous.” Southwest Royalties, Inc. v. Hegar, 500 S.W.3d 400, 405 (Tex. 2016). If the statute is unambiguous, agency deference “has no place.” TracFone Wireless, Inc. v. Commission on State Emergency Commc‘ns, 397 S.W.3d 173, 182 (Tex. 2013).
The detainees raised several grounds for invalidating the FRC Rule in their motion for summary judgment: (1) the Department lacks implied statutory authority to issue GRO licenses to Dilley and Karnes and regulate them because they are not GROs, due to the fact that parents reside in the facilities with their children; (2)
In its final judgment, the trial court granted the detainees’ motion for summary judgment as to their claim for declaratory relief under the APA and determined that “[t]he FRC Rule contravenes
We agree with the detainees’ argument, which they made in their summary-judgment motion, that the Department lacks the express or implied statutory authority to license the Dilley and Karnes facilities—and regulate them as child-care facilities, including by promulgating the FRC Rule—because the children reside in the facilities with their parents and the facilities are therefore neither “child-care facilities” nor GROs. Cf.
In Chapter 42 of the Human Resources Code (entitled “Regulation of Certain Facilities, Homes, and Agencies that Provide Child-Care Services“), the term “child-care facility” means
a facility licensed, certified, or registered by the department to provide assessment, care, training, education, custody, treatment, or supervision for a child who is not related by blood, marriage, or adoption to the owner or operator of the facility, for all or part of the 24-hour day, whether or not the facility is operated for profit or charges for the services it offers.
(providing that FRCs are GROs). The Department‘s argument continues: because GROs are child-care facilities, they are subject to the child-care licensing requirements and regulations in Subchapter C of Chapter 42 of the Human Resources Code, and the Department has the implied authority to promulgate rules regulating them. See generally
We first note that neither “care” nor “child care” is defined in Chapter 42. When a statute uses a word that it does not define, our task is to determine and apply the word‘s common, ordinary meaning. Jaster v. Comet II Constr., Inc., 438 S.W.3d 556, 563 (Tex. 2014). In determining the common, ordinary meaning of a term, we may look to a “wide variety of sources, including dictionary definitions, treatises and commentaries, our own prior constructions of the word in other contexts, the use and definition of the word in other statutes and ordinances, and the use of the words in our rules of evidence and procedure.” Id. We must construe the term in the context of the statute in which it appears, analyzing the reasonableness of the term‘s different meanings, bearing in mind that the “words’ meanings cannot be determined in isolation but must be drawn from the context in which they are used.” TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 439 (Tex. 2011).
One reputable dictionary defines the noun “care,” in the context of children, as “charge” and “supervision,” i.e., “responsibility for or attention to health, well-being, and safety,” see Care, Merriam-Webster Online Dictionary (www.merriam-webster.com/dictionary/care) (last visited February 1, 2023), and the noun “child care,” relevantly here, as “the care of children especially as a service while parents are working,” see Child care, Merriam-Webster Online Dictionary (www.merriam-webster.com/dictionary/childcare) (last visited February 1, 2023). The statute specifies that a “child-care facility” is a facility that provides certain services (including “care“) to a child “who is not related by blood, marriage, or adoption to the [facility‘s] owner or operator,” see
This construction is compelled by Subchapter G of Chapter 42, entitled “Regulation of Temporary Shelter Day-Care Facilities.” Subchapter G defines another category of facility: a “shelter,” meaning
a supervised publicly or privately operated shelter or other facility that is designed to provide temporary living accommodations to individuals and families, including a family violence shelter, a homeless shelter, and an emergency shelter. The term does not include a temporary facility established in response to a natural or other disaster.
shelter care for: less than four hours a day or three days a week or six or fewer children.8 See
The Department attempts to distinguish Subchapter G by arguing that Dilley and Karnes do not provide any “shelter care” because—apart from the occasional hospitalizations of parents offsite—any child care provided at the facilities happens while parents remain onsite but are unavailable to directly care for their children themselves, such as when they attend meetings with their lawyers. Cf.
Finally, our construction aligns with a Subchapter C exemption from licensing requirements for facilities that are operated in connection with an “establishment where children are cared for during short periods while parents . . . are . . . engaging in other activities . . . on or near the premises, that does not advertise as a child-care facility or day-care center, and that informs parents that it is not licensed by the state.” See
We hold that the Department lacks the statutory authority to require the Dilley and Karnes facilities to obtain GRO (or
Appellant GEO Group‘s third issue
Appellant GEO Group, Inc.—the operator of Dilley—raises an issue (its third) that neither the Department nor the Corrections Corporation of America (the operator of Karnes) raises, contending that the plaintiffs are estopped from bringing their APA challenge to the FRC Rule. GEO argues that because the plaintiffs are putative members of the Flores class, in which proceeding they took the position—and from which they benefited per the consent decree—that undocumented minors must be placed in a program that is “licensed by an appropriate State agency to provide residential, group, or foster care services for dependent children,” see Flores, 212 F. Supp. 3d at 877, they cannot now assert the “inconsistent” position in this lawsuit of attacking the FRC Rule. See Pleasant Glade Assembly of God v. Schubert, 264 S.W.3d 1, 6 (Tex. 2008) (“The doctrine of judicial estoppel ‘precludes a party from adopting a position inconsistent with one that is maintained successfully in an earlier proceeding.‘” (citation omitted)); Lopez v. Munoz, Hockema & Reed, L.L.P., 22 S.W.3d 857, 864 (Tex. 2000) (“Quasi-estoppel precludes a party from asserting, to another‘s disadvantage, a right inconsistent with a position previously taken” and “applies when it would be unconscionable to allow a person to maintain a position inconsistent with one to which he acquiesced, or from which he accepted a benefit.“); Bexar Metro. Water Dist. v. City of San Antonio, 228 S.W.3d 887, 895–96 (Tex. App.—Austin 2007, no pet.) (“A party that benefits from a position that it has taken in a consent decree is . . . estopped from later asserting an inconsistent position.“).
However, as appellees respond in their brief, appellees’ litigation positions are not inconsistent because the Flores consent decree cannot reasonably be construed as acquiescence in the promulgation of a rule that is invalid because it exceeds an agency‘s statutory authority and contravenes legislative intent. While the class members in Flores expressly agreed to be placed in a “licensed program,” it must be presumed that such contemplated licensing is authorized by and in compliance with applicable state laws. Cf. Cayan v. Cayan, 38 S.W.3d 161, 166 n.8 (Tex. App.—Houston [14th Dist.] 2000, pet. denied) (“[A] court cannot construe a statute or a contract to impose or enforce an illegal obligation or otherwise compel an illegal act because the purpose of the legal system is to combat unlawfulness, not promote it.“). We conclude that appellees are not estopped from raising their APA claim and accordingly overrule GEO‘s third issue.
A few days after the trial court signed its December 2, 2016 Final Judgment, the plaintiffs filed an “Emergency Motion to Prevent Automatic Suspension of Judgment on Appeal Pending A Decision on the Terms of any Supersedeas.” In the motion, the plaintiffs stated that “[w]hile Plaintiffs prefer that the Court not authorize any suspension of its judgment, the Court may wish to impose terms that are substantively identical to the terms stated in this Court‘s temporary injunction issued June 3, 2016.”10 A hearing on the motion was held December 5, at which the defendants “notified the Court of their intent to (1) perfect an appeal and automatically supersede the Court‘s Final Judgment; (2) issue a license under the FRC Rule to . . . [Dilley]; and (3) give full force and effect to the license previously issued under the FRC Rule to . . . [Karnes].” On December 16 the trial court signed its Amended Final Judgment, “[a]fter reviewing Plaintiff‘s Motion to Prevent.” The Amended Final Judgment vacated the December 2
Final Judgment and substituted in its place an amended judgment with the same substantive provisions except for the addition of a section entitled “Injunctive Relief and Denial of Automatic Supersedeas.”
That new section of the Amended Final Judgment contains the trial court‘s finding that “allowing Defendants to automatically supersede the Court‘s ruling that the FRC Rule is invalid would render the relief granted by this Amended Final Judgment ineffective and Plaintiffs would suffer imminent and irreparable harm” unless the “status quo” was preserved during the pendency of the appeal. To preserve the status quo, the Amended Final Judgment provided,
Defendants . . . are ORDERED to refrain from issuing licenses under the FRC Rule until the Court of Appeals issues a decision on appeal or further Order of the Court.
Defendants . . . are FURTHER ORDERED to continue to investigate and report any allegations of abuse or neglect, standards deficiencies, or violation(s) of rule of law at Karnes and Dilley during the pendency of any appeal of this Court‘s ruling.
In their final issue, appellants argue that it was improper for the trial court to issue the latter of the above orders—which they contend effectively constitutes a permanent injunction and to require the Department to regulate the facilities during pendency of the appeal because plaintiffs did not specifically plead for that relief. See Shields v. State, 27 S.W.3d 267, 271 (Tex. App.—Austin 2000, no pet.) (“Persons seeking a permanent injunction must be specific in pleading the relief sought . . . .“); Gause v. Gause, 430 S.W.2d 409, 413 (Tex. App.—Austin 1968, no writ) (noting that permanent injunction must be sought in special prayer). Moreover, appellants contend, this portion of the Amended Final Judgment “runs contrary to [the trial court‘s] own determination that the Department lacks statutory authority to adopt [the FRC Rule].” We agree with this latter contention.
We have determined that the Department lacks statutory authority to issue child care licenses to Dilley and Karnes
CONCLUSION
We reverse and vacate the portion of the Amended Final Judgment granting injunctive relief ordering the Department to “continue to investigate and report any allegations of abuse or neglect, standards deficiencies, or violation(s) of rule of law at Karnes and Dilley during the pendency of any appeal of this Court‘s ruling.” We affirm the remainder of the judgment.
Thomas J. Baker, Justice
Before Justices Baker, Kelly, and Smith
Affirmed in Part; Reversed and Vacated in Part on Remand
Filed: February 10, 2023