Texas Department of Family and Protective Services Henry Whitman, in His Official Capacity as DFPS Commissioner Texas Health and Human Services Charles Smith, in His Official Capacity as HHSC Executive Commissioner and Corrections Corporation of America 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., and the GEO Group, Inc.

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-18-00261-CV

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

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.; 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

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 353RD JUDICIAL DISTRICT

NO. D-1-GN-15-004336, HONORABLE KARIN CRUMP, JUDGE PRESIDING

MEMORANDUM OPINION

This appeal concerns several parties’ challenges to the validity of a rule promulgated

by the Texas Department of Family and Protective Services (DFPS). The challenged rule requires

“family residential centers” (FRCs)—which serve as detention centers for immigrants and their

minor children who are subject to federal civil-immigration proceedings—to be licensed as “general

residential operations” (GROs) and, thus, subject to the State’s minimum standards for such

facilities.1 As they did below in a plea to the jurisdiction, appellants DFPS and its Commissioner

and the Texas Health and Human Services Commission (HHSC) and its Executive Commissioner

contend that the trial court should not have reached the merits of the rule challenge because each

plaintiff below lacked standing to confer jurisdiction on the trial court. We agree with appellants

and, for the following reasons, reverse the trial court’s judgment and render judgment granting

appellants’ plea to the jurisdiction and dismissing appellees’ rule-challenge claims with prejudice.

BACKGROUND2

In 1985 a class of plaintiffs initiated a lawsuit against U.S. Immigration and Customs

Enforcement (ICE) and other defendants in the District Court of Central California; many years

later, the parties entered into a court-approved settlement of the lawsuit (the “Flores Settlement

Agreement”). See Flores v. Lynch, 828 F.3d 898, 901–03 (9th Cir. 2016). The Flores Settlement

Agreement “set[] out nationwide policy for the detention, release, and treatment of minors in the

custody of [ICE].” Id. at 901. Under the Flores Settlement Agreement, unless detention is necessary

1

The Providers sued the Texas Department of Family and Protective Services (DFPS) and

its Commissioner, Henry Whitman, because DFPS was at the time the agency that handled licensing

of child-care facilities. Effective September 1, 2017, appellant Texas Health and Human Services

Commission (HHSC) assumed responsibility for child-care licensing as a result of legislation

directing that DFPS become a stand-alone agency that is separate from HHSC and will regulate

child-care operations only to the extent of investigating child abuse, neglect, and exploitation. See

Act of May 22, 2017, 85th Leg., R.S., ch. 316, §§ 22, 24, 38, 2017 Tex. Gen. Laws 601, 607, 612.

In accordance with this transfer of responsibility, the relevant rules have been transferred to Title 26

of the Texas Administrative Code. See 43 Tex. Reg. 909 (2018) (announcing transfer of rules that

contain minimum standards for child-care operations from DFPS to HHSC); see also, e.g., 26 Tex.

Admin. Code § 748.7 (2018) (Health & Human Servs. Comm’n, How are these regulations applied

to family residential centers?).

2

The facts in this section are derived from recitations in the trial court’s Amended Final

Judgment.

2

to secure a minor’s appearance in court or to ensure safety, ICE must promptly release the minor

to an adult family member or other suitable individual or entity. Id. at 902–03. Also, ICE must

temporarily place all unreleased minors in an unsecure and “licensed program”—i.e., a facility that

is “licensed by an appropriate State agency to provide residential, group, or foster care services for

dependent children.” Id. at 903.

In response to increased numbers of Central Americans arriving at the U.S.-Mexico

border during the summer of 2014, and to deter further arrivals, ICE adopted a policy of detaining

all female-headed immigrant families. Flores v. Johnson, 212 F. Supp. 3d 864, 869 (C.D. Cal.

2015), aff’d in part, rev’d in part and remanded sub nom. Flores v. Lynch, 828 F.3d 898 (9th

Cir. 2016). Detention under ICE’s new policy would last for the duration of the deportation

proceedings that determine if the mothers and children are entitled to remain in the United States.

Id. Notwithstanding the Flores Settlement Agreement, ICE’s new policy provided that the immigrants

would be detained in secure, unlicensed facilities. Id. In federal court, the new ICE policy was held

to violate the Flores Settlement Agreement. See id. at 879 (“Defendants cannot be in substantial

compliance with the Agreement because the facilities are secure and non-licensed.”), aff’d in

relevant part, 828 F.3d at 908–10.

ICE opened three new family detention facilities, two in south Texas—known as

“Dilley” and “Karnes” due to their locations—and one in New Mexico, which was closed shortly

thereafter. Flores, 828 F.3d at 904. This lawsuit concerns the Dilley and Karnes facilities, which

are operated by private prison companies under contract with ICE. Appellant Corrections Corporation

of America (currently known as CoreCivic) operates the Dilley facility; appellant GEO Group, Inc.,

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operates the Karnes facility. The Karnes and Dilley facilities began detaining immigrant women

and children in 2014.

DFPS did not attempt to regulate FRCs in Texas until it adopted an emergency rule

on September 2, 2015. Before that time, DFPS had historically and consistently acknowledged that

it lacked authority to license FRCs and declined to do so based upon that lack of authority. Shortly

after the emergency rule was adopted, Grassroots Leadership initiated this lawsuit to challenge the

emergency rule. The trial court issued a temporary injunction prohibiting DFPS from implementing

the emergency rule but expressly permitting it to proceed through the traditional rulemaking

procedures outlined in the Texas Government Code. See Tex. Gov’t Code §§ 2001.023–.029. DFPS

followed the procedures for rulemaking and subsequently adopted Rule 748.7 (referred to by the

parties and in the trial court’s judgment as the “FRC Rule”). See 26 Tex. Admin. Code § 748.7

(2018) (Health & Human Servs. Comm’n, How are these regulations applied to family residential

centers?) (formerly codified at 40 Tex. Admin. Code § 748.7).

Grassroots Leadership amended its petition several times while the cause was pending

below, adding additional plaintiffs: Gloria Valenzuela, who operates a day-care facility in El Paso,

and several detainees, on behalf of themselves and their minor children. CoreCivic and GEO Group

intervened as defendants. Appellees’ live petition asserts the following causes of action against

appellants: (1) a challenge to the FRC Rule as allegedly exceeding DFPS’s statutory authority in

contravention of the Human Resources Code, see Tex. Gov’t Code § 2001.038; (2) a request for

declaratory relief under the Uniform Declaratory Judgments Act (UDJA), see Tex. Civ. Prac. &

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Rem. Code §§ 37.001–.011; and (3) and a claim that DFPS’s attempts to issue licenses to Karnes

and Dilley constitute ultra vires acts.3

Appellees’ live petition outlines their primary contentions for challenging the validity

of the FRC Rule: the rule exceeds DFPS’s statutory authority; DFPS did not provide a reasoned

justification, see Tex. Gov’t Code 2001.033(a)(1); the rule’s provisions prolong the detention of

minors; the rule allows for the detention of minors in violation of Family Code section 54.011(f),

see Tex. Fam. Code § 54.011(f) (“[A] nonoffender, including a person who has been taken into

custody and is being held solely for deportation out of the United States, may not be detained for any

period of time in a secure detention facility . . . .”); and the rule “authoriz[es] conditions of detention

for mothers and children . . . by permitting exceptions to minimum child safety standards established

by DFPS itself . . . that increase their risk of physical harm and fear for their physical safety.”

Plaintiffs below sought a declaration invalidating the rule and declaring that DFPS has no authority

to issue licenses to Dilley and Karnes.

Appellants filed pleas to the jurisdiction claiming that appellees lack standing to

assert their claims. In its Final Amended Judgment, the trial court denied the pleas to the jurisdiction

as to appellees’ rule challenge and declared the FRC Rule invalid because it “contravenes” Human

Resources Code section 42.002(4) and “runs counter to the general objectives of the [] Human

3

Only the appellees’ rule challenge is before us on appeal, as the trial court dismissed

appellees’ UDJA claim when granting appellants’ plea to the jurisdiction, and the trial court’s

Amended Final Judgment, while not specifically ruling on the ultra vires claims, “dispose[d] of all

parties and claims.” See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001) (noting that

judgment issued without conventional trial is final if it actually disposes of all claims and parties).

Appellees have not cross-appealed the trial court’s judgment with respect to their declaratory-

judgment and ultra vires claims.

5

Resources Code.” The Final Amended Judgment also ordered DFPS and HHSC 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” but 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.”

DISCUSSION

Appellants contend that, before we address the merits of appellees’ rule challenge,

we must determine whether any of the appellees has standing. Because standing is a component of

subject-matter jurisdiction, we agree that we must first consider the issue. See Texas Ass’n of Bus.

v. Texas Air Control Bd., 852 S.W.2d 440, 445–46 (Tex. 1993) (noting that appellate courts consider

plaintiff’s standing under same standard by which they review subject-matter jurisdiction generally,

which requires plaintiff to allege facts that affirmatively demonstrate court’s jurisdiction to hear

cause). Standing requires “a concrete injury to the plaintiff and a real controversy between the parties

that will be resolved by the court.” Heckman v. Williamson Cty., 369 S.W.3d 137, 154 (Tex. 2012);

see Texas Dep’t of State Health Servs. v. Balquinta, 429 S.W.3d 726, 739 (Tex. App.—Austin 2014,

pet. dism’d).

To satisfy the supreme court’s standing test, a plaintiff “must allege personal injury

fairly traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by the

requested relief.” Heckman, 369 S.W.3d at 154 (quoting Allen v. Wright, 468 U.S. 737, 751 (1984)).

The standing inquiry “begins with the plaintiff’s alleged injury.” Id. at 155. That is, the plaintiff

must plead that she is personally injured, demonstrating facts that she, herself (rather than a third

6

party or the public at large) suffered the injury. Id. As for the injury itself, it “must be concrete and

particularized, actual or imminent, not hypothetical.” Id. (quoting DaimlerChrysler Corp. v. Inman,

252 S.W.3d 299, 304–05 (Tex. 2008)). Standing is determined at the time suit is filed in the trial

court, and subsequent events do not deprive the court of subject-matter jurisdiction. Texas Ass’n

of Bus., 852 S.W.2d at 446 n.9. We review the denial of a plea to the jurisdiction de novo. Texas

Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004).

We now consider whether each appellee has standing—that is, whether each has a

concrete and particularized injury fairly traceable to the FRC Rule that is likely to be redressed by

the requested relief.

Whether Grassroots Leadership has standing

Per the testimony of its Executive Director, Grassroots Leadership is a non-profit

association focused on “advocating for policies that reduce reliance on incarceration and detention.”

Grassroots Leadership has alleged that it opposes the FRC Rule because it would allow Karnes and

Dilley to detain children for longer periods of time under lower standards of care than are provided

to children in all other Texas GROs and that the association has been forced to “divert resources to

opposing the FRC Rule’s adoption and the licensure of private prisons as childcare facilities.”

An associational plaintiff can sue on behalf of its members, in which case it must

demonstrate standing based on at least one freestanding claim by a member. Texas Ass’n of Bus.,

852 S.W.2d at 446–47. However, Grassroots Leadership has not asserted that it has any members

and, therefore, cannot meet the requirements of the associational test for standing. See id. (adopting

U.S. Supreme Court’s associational-standing test requiring, relevantly, that association’s members

7

would otherwise have standing to sue in their own right and citing Hunt v. Washington State Apple

Advert. Comm’n, 432 U.S. 333, 343 (1977)); see also Texas Soc’y of Prof’l Eng’rs v. Texas Bd. of

Architectural Exam’rs, No. 03-08-00288-CV, 2008 WL 4682446, at *3–4 (Tex. App.—Austin

Oct. 24, 2008, no pet.) (mem. op.) (declining to find standing where plaintiff association could not

meet associational-standing test). Accordingly, Grassroots Leadership is required to establish standing

based on “concrete and particularized” injury to itself, as an entity. See Heckman, 369 S.W.3d at

155; City of San Antonio v. Headwaters Coal., Inc., 381 S.W.3d 543, 549–50 (Tex. App.—San

Antonio 2012, pet. denied) (concluding that nonprofit corporation that owned land immediately

upstream from city’s proposed drainage project had standing to bring injunction suit because it

showed it would suffer particularized injury distinct from that suffered by general public).

Grassroots Leadership alleges that its injury here is that it was required to “divert

volunteer and financial resources from its other work, including . . . starting visitation programs to

detained migrants at immigration detention centers around Texas, an advocacy campaign to end the

immigration detention bed quota, and producing a research report on federal-court prosecution of

migrants at the border.” In other words, Grassroots Leadership asserts that it spent money on its

advocacy activities related to opposing the private detention facilities. However, these activities

are not sufficient to meet the test for individualized standing, as the injury it claims to have

suffered—the expenditure of advocacy resources—is too attenuated from any legally protected

interest it could possibly have in the FRC Rule, not itself being subject to the rule or directly affected

by its provisions. See Brown v. Todd, 53 S.W.3d 297, 305 (Tex. 2001) (“[b]y particularized, we

mean that the injury must affect the plaintiff in a personal and individual way”) (citing Lujan v.

8

Defenders of Wildlife, 504 U.S. 555, 560 & n.1 (1992)); M.D. Anderson Cancer Ctr. v. Novak,

52 S.W.3d 704, 707–08 (Tex. 2001) (plaintiff must be “personally aggrieved” to establish standing).

Furthermore, Grassroots Leadership’s choice to expend advocacy resources to challenge the FRC

Rule and the detention centers generally—assuming that such “injury” were sufficiently concrete

and particularized—cannot reasonably be considered “fairly traceable” to DFPS’s or HHSC’s

conduct in promulgating or enforcing the rule.

While Grassroots Leadership cites Havens Realty Corp. v. Coleman, 455 U.S. 363,

378–79 (1982), for its contention that its advocacy expenditure creates standing, we note that the

standing test outlined in Havens (requiring the plaintiff to have a “personal stake” in the outcome

of the controversy, which was met by the organization’s allegation that it was required to spend

money to counteract governmental policy) applies specifically to claims brought under the federal

Fair Housing Act.4 See id. at 378; see also Midpeninsula Citizens for Fair Hous. v. Westwood Inv’rs,

221 Cal. App. 3d 1377, 1385 (Cal. Ct. App. 1990) (declining to expand Havens beyond Fair Housing

Act damages claims because it did not address constitutional standing). This is not a Fair Housing

4

Grassroots Leadership also asserts that it has standing to redress the violation of its

“statutory rights” under the Administrative Procedure Act (APA) in that DFPS allegedly did not

“seriously consider” Grassroots Leadership’s objections and comments or give adequate justification

for disregarding them when promulgating the final rule. See Tex. Gov’t Code §§ 2001.029, .030;

Planned Parenthood v. Gee, 862 F.3d 445, 455 (5th Cir. 2017) (“[V]iolation of a statutory right, even

standing alone, may be sufficient to satisfy the injury requirement . . . .”). We reject this argument

because the supreme court has held that the APA does not extend the scope of constitutional

standing. See Finance Comm’n v. Norwoood, 418 S.W.3d 566, 582 n.83 (Tex. 2013) (“The [APA]

does not purport to set a higher standard than that set by the general doctrine of standing, and it

cannot be lower, since courts’ constitutional jurisdiction cannot be enlarged by statute.”). Morever,

the case on which Grassroots Leadership relies speaks to the alleged deprivation of a “statutory

right of entitlement” as the basis of standing, see Gee, 862 F.3d at 455; here, Grassroots Leadership

has no statutory right under the APA that rises to the level of an entitlement.

9

Act case, and we decline to expand Havens beyond such claims. Therefore, plaintiffs must meet the

particularized injury test adopted by the Texas Supreme Court and the United States Supreme Court

since Havens. See Brown, 53 S.W.3d at 305. Because Grassroots Leadership has not pleaded a

particularized injury, we conclude that it lacks standing to bring this rule challenge.

Whether Valenzuela has standing

Valenzuela operates a small day-care facility in El Paso and asserts standing based

on “license disparagement,” contending that the licensing of the FRCs as GROs will affect parents’

perceptions of her day-care license, perhaps causing them to choose unlicensed child care based on

their negative perceptions of the “jail-like” FRCs. See Texas State Bd. of Podiatric Med. Exam’rs

v. Texas Orthopaedic Ass’n, No. 03-04-00253-CV, 2004 WL 2556917, at *1 n.3 (Tex. App.—Austin

Nov. 12, 2004, no pet.) (mem. op.) (holding that association of orthopedists met injury prong of

standing test to challenge rule granting podiatrists right to perform procedures that otherwise would

be considered practice of medicine based on association’s allegation that privilege of practicing

medicine would be diminished because podiatrists are neither licensed nor trained to practice

medicine); see also Intercontinental Terminals Co. v. Vopak N. Am., Inc., 354 S.W.3d 887, 895

(Tex. App.—Houston [1st Dist.] 2011, no pet.) (in case where standing was not at issue, court

concluded that where one business competitor alleged loss of reputation and goodwill as injury in

dispute with another competitor about use of shared rail line, complaining competitor sufficiently

alleged threatened injury to support temporary injunction).

However, the case on which Valenzuela relies does not support standing under her

circumstances, as it involved the expansion of an exception to medical licensure, which would put

10

a previous license holder (orthopedists) in direct economic competition with new license holders

(podiatrists). See Texas State Bd. of Podiatric Med. Exam’rs, 2004 WL 2556917, at *2. Here,

Valenzuela holds a State license to operate a small day-care facility; Dilley and Karnes, located in

south Texas over 500 miles away, are twenty-four-hour GROs each with hundreds of residents and

subject to a completely different type of licensing. Dilley and Karnes are not and could not be in

any direct economic competition with Valenzuela’s facility. Valenzuela has not pleaded that she has

ever been personally detained at any FRC or that she operates one. Her speculative scenario about

parents choosing unlicensed day care due to potentially negative perceptions of day-care licenses

such as hers is far too attenuated and speculative to support standing requirements. Simply put,

Valenzuela has not pleaded any concrete and particularized injury to herself or her day-care facility

as a result of the FRC Rule. See Brown, 53 S.W.3d at 305. Accordingly, we conclude that Valenzuela

lacks standing to bring this rule challenge.

Whether the detainees have standing

The detainees, none of whom still reside in the detention centers,5 assert standing

based on alleged harm to their minor children, whom they claim will be detained for longer periods

of time—which itself causes “grievous harm to children”6—and in “dangerous conditions” due to

5

Appellants also assert that the detainees’ claims are moot based on the fact that none of

them reside any longer in the facilities at issue. Because mootness is a question separate from

standing, see, e.g., Heckman v. Williamson Cty., 369 S.W.3d 137, 162 (Tex. 2012), we address the

issue of the detainees’ standing first and then, if necessary, appellants’ mootness argument.

6

There was evidence adduced at the temporary-injunction hearing from appellees’ expert

about the psychological effect of detention on children, specifically about how the negative

effects—including stress, trauma, and hypervigilance—increase the longer the children remain in

detention.

11

the challenged rule’s “bedroom-rule waivers” that allegedly “force children to sleep in the same

bedroom as adult strangers, exposing them to invasion of privacy and risk of sexual assault.”

Essentially, the detainees’ alleged injury is the harm that they contend will result from lengthier

detention and the danger that the bedroom-rule waivers pose—they assert that these “risks to safety

suffice to prove Detainee Plaintiffs’ standing.”7 See Texas Ass’n of Bus., 852 S.W.2d at 447 (holding

that “[a] substantial risk of injury is sufficient” to confer standing). They further contend that the

fact the FRC Rule and licensing thereunder will also incrementally benefit them and their children

in the form of more rigorous background checks and inspections of facilities does not obviate their

standing because the standing test does not require a balancing between alleged harm and benefit;

it requires only a showing of harm, even simply “an identifiable trifle.” See United States v. Students

Challenging Regulatory Agency Procedures, 412 U.S. 669, 689 n.14 (1973) (noting that “injury in

fact” element of standing test “serves to distinguish a person with a direct stake in the outcome of

a litigation—even though small—from a person with a mere interest in the problem”); OCA-Greater

Hous. v. Texas, 867 F.3d 604, 612 (5th Cir. 2017) (holding that injury requirement of standing

inquiry is “qualitative, not quantitative”).

While the detainees concede that the fact of detention is traceable to the federal

government and to ICE (and thus not redressable in this lawsuit against appellants), they maintain

7

The FRC Rule provides that FRCs must comply with the same “minimum standards”

applicable to GROs generally, except that FRCs need not comply with the following minimum

standards: (1) the maximum of four occupants per bedroom, (2) the prohibition against a child

sharing a bedroom with an adult if the bedroom is being shared in order to allow a child to remain

with the child’s parent or other family member, and (3) the prohibition against children of opposite

genders sharing a bedroom as long as the children are members of the same family and under the age

of six. See 26 Tex. Admin. Code § 748.7(c).

12

that the length and conditions of detention—which the detainees explicitly challenge—are traceable

to the State, which has the authority to issue the FRC licenses and waive the GRO minimum

standards, as alleged here. As to the conditions of detention—the alleged danger from “forcing

children to share bedrooms with adult strangers”—appellees contend in their brief that the FRC

Rule’s waiver of bedroom minimum requirements “allows any adult—even a stranger—to sleep in

the same bedroom with an unrelated child.” Appellees cite to testimony in the record from detainees

who claim to have had to share a bedroom with their children in addition to other, unrelated adults

at Dilley and Karnes. They also cite to testimony of a twelve-year-old girl who was allegedly groped

by an unrelated female adult detainee with whom she was sharing a bedroom.

However, a review of the text of the challenged rule belies appellees’ contention that

the rule “allows children to share bedrooms with unrelated adults.” To the contrary, the FRC Rule

explicitly forbids adults to share a bedroom with unrelated children: “A family residential center is

not required to comply with all terms of the following Minimum Standards: . . . the limitation on a

child sharing a bedroom with an adult in § 748.3361 of this title (relating to May a child in care share

a bedroom with an adult?), if the bedroom is being shared in order to allow a child to remain with

the child’s parent or other family member.” 26 Tex. Admin. Code § 748.7(c)(2) (emphasis added).

That is, the FRC Rule allows for a minor to share a bedroom with the child’s parent or adult family

member; on its face, it does not allow a minor to share a bedroom with an unrelated adult. Simply

put, the FRC Rule does not allow for the alleged harmful conditions about which appellees complain

and, therefore, appellees have not asserted an injury that is fairly traceable to the FRC Rule’s

bedroom-rule waiver that is sufficient to confer standing.

13

We further conclude that the length a child is detained—and the alleged harm

resulting from longer detention periods allegedly made possible by licensure of the FRCs—is not

fairly traceable to the FRC Rule and appellants. Rather, the length of detention is traceable to federal

immigration policy and the Flores Settlement Agreement’s requirement that state facilities detaining

minors be licensed. The FRC Rule and DFPS’s promulgation thereof are not what permits the

allegedly longer detention periods about which appellees complain; rather, the length of detention

is determined by ICE policy and is solely within ICE’s discretion. See Southwest Pharmacy Sols.,

Inc. v. Texas Health & Human Servs. Comm’n, 408 S.W.3d 549, 565 (Tex. App.—Austin 2013, pet.

denied) (concluding that economic losses alleged by plaintiff resulted from legislative changes to

Medicaid program, not from properly implemented rules effecting those changes). Length of detention

is solely the province of ICE; implementation of the FRC Rule cannot determine how long detainees

are detained.

Appellees’ alleged injury of lengthier detention caused by the FRC Rule is also too

speculative to meet the concrete-injury requirement of the standing analysis.8 See DaimlerChrysler

Corp., 252 S.W.3d at 307 (“[I]f injury is only hypothetical, there is no real controversy.”). It is ICE

that determines where detainees will be detained, not the FRC Rule or the State; were Dilley and

Karnes not licensed, we cannot predict whether the detainees would be detained in a facility licensed

by another state, whether they would be detained in unlicensed facilities, or whether they would be

released. We conclude that the detainees’ alleged injury in the form of possible prolonged detention

8

Moreover, appellees conceded in their motion for summary judgment that the average

length of stay at Karnes has actually decreased since the facility became licensed under the FRC Rule.

14

of their minor children is neither concrete and particularized nor fairly traceable to DFPS or HHSC

and is, therefore, insufficient to confer standing.

CONCLUSION

Because none of the appellees has standing to challenge the FRC Rule, the trial

court did not have subject-matter jurisdiction over the cause, and the trial court erred in denying

appellants’ plea to the jurisdiction. Accordingly, we reverse the trial court’s judgment and render

judgment granting appellants’ plea to the jurisdiction and dismissing appellees’ rule-challenge claims

with prejudice.

__________________________________________

David Puryear, Justice

Before Justices Puryear, Goodwin, and Bourland

Reversed and Rendered

Filed: November 28, 2018

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