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. 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.

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
ON REMAND
NO. 03-18-00261-CV
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., Appellants1
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
FROM THE 353RD DISTRICT COURT OF TRAVIS COUNTY
NO. D-1-GN-15-004336, THE HONORABLE KARIN CRUMP, JUDGE PRESIDING
OPINION
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 Protective
1
Pursuant to Rule 7.2 of the Texas Rules of Appellate Procedure, the current
commissioners of the relevant agencies have been automatically substituted for the agencies’
former commissioners.
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 as to part of the injunctive relief, but otherwise affirm
the remainder of 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
2
At the time of trial, Chapter 42 of the Texas Human Resources Code gave the
Department child-care-licensing authority. Since then, statutory restructuring has given that
oversight to the Texas Health and Human Services Commission, also a party to this lawsuit.
2
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 26 Tex. Admin. Code § 748.7 (2022) (Tex. Health & Hum. Servs.
Comm’n, How are these regulations applied to family residential centers?) (the FRC Rule).
Among those variances, and to allow Dilley and Karnes to house families together, the FRC Rule
eliminated a provision in state regulations (the so-called “Minimum Standards”) prohibiting the
housing of adults and children in the same bedroom except in narrow circumstances.3 See
Grassroots Leadership, 646 S.W.3d at 818.
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
3
Since plaintiffs filed suit, the Minimum Standards have been amended to allow children
to share bedrooms with parents and adult siblings. See 26 Tex. Admin. Code § 748.1937 (2022)
(Tex. Health & Hum. Servs. Comm’n, May an adult in care share a bedroom with a child
in care?).
4
The longer detention periods are a consequence of Flores’s requirement that the
facilities be State-licensed because ICE is permitted to detain minors in non-licensed “safe and
sanitary” facilities for no more than five days after arrest, except “in the event of an emergency
or influx of minors into the United States.” See Flores v. Lynch, 828 F.3d 898, 902–03 (9th
Cir. 2016).
3
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
standing to challenge the FRC Rule. The trial court granted the jurisdictional pleas in part,
dismissing the plaintiffs’ claims under the Uniform Declaratory Judgments Act, but denied
the pleas as to the remaining grounds. The trial court also denied the defendants’ motions for
summary judgment regarding the validity of the FRC Rule. In its final judgment, the trial court
rendered summary judgment on the plaintiffs’ claims for declaratory relief under the
Administrative Procedure Act (APA), declaring the FRC Rule invalid because it “contravenes”
Section 42.002(4) of the Texas Human Resources Code and “runs counter to the general
objectives of the Texas Human Resources Code.”
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.
5
The day-care operator and Grassroots Leadership did not challenge in the supreme court
this Court’s ruling as to their standing.
4
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 8 U.S.C. § 1226(b), and therefore their claims are not moot, see In re Hutto
Fam. Det. Ctr., No. A-07-CA-164-SS, 2007 WL 9757682, at *2 (W.D. Tex. May 10, 2007)
(holding that because detainees “ha[d] not been unequivocally released” and had been given only
“discretionary parole” under Section 1226(b) that could “be revoked at any time, even if the
detainee does nothing in particular to warrant revocation,” they had “a continuing, vital interest
in the outcome of this litigation,” and their claims were not moot), reconsideration granted on
other grounds, 2007 WL 9757682, at *1 (W.D. Tex. May 29, 2007); see also Clark v. Martinez,
543 U.S. 371, 376 n.3 (2005) (holding that discretionary, revocable parole release under different
5
code section did not moot detainee’s claims for relief); Rosales-Garcia v. Holland, 322 F.3d 386,
395–96 (6th Cir. 2003) (same); Roberts v. State, 508 S.W.3d 310, 311 (Tex. App.—Fort Worth
2013, no pet.) (noting that because inmate’s release from prison was on condition of parole, he
remained in custody of Department of Criminal Justice and thus his complaint about withdrawals
from his inmate trust account was not moot). But in the cases cited by appellees, the conditions
under which the detainees had been released were undisputed and were made known to the court.
See Clark, 543 U.S. at 376 n.3; Rosales-Garcia, 322 F.3d at 395–96; In re Hutto Fam. Det. Ctr.,
2007 WL 9757682, at *2; Roberts, 508 S.W.3d at 311.
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’
6
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 which the detainees were released, and therefore we cannot
conclude that there is more than a mere physical or theoretical possibility that they will be
detained in one of these two centers—or any center—again. See Heckman v. Williamson
7
County, 369 S.W.3d 137, 165 (Tex. 2012) (noting that for “capable of repetition exception” to
apply, plaintiff must show that “the claim is capable of repetition as to him”); State v. City of
Austin, No. 03-20-00619-CV, 2021 WL 1313349, at *6 (Tex. App.—Austin Apr. 8, 2021, no
pet.) (mem. op.) (“The ‘mere physical or theoretical possibility’ that the same party may be
subjected to the same action again is not sufficient to satisfy this element.” (quoting Murphy v.
Hunt, 455 U.S. 478, 482 (1982))). Appellees therefore have not demonstrated that their first
cited mootness exception applies.
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,
8
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 abuse),
and the record contains evidence of at least one child’s being groped at Karnes by an unrelated
adult with whom she was sharing a bedroom per the FRC Rule’s exceptions to the Minimum
Standards. It also contains evidence of the trauma and psychological harm that children suffer
from being in detention centers, which harm would presumably increase by virtue of the longer
detention periods that licensing of the facilities under the FRC Rule would allow.
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
9
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
10
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 Tex. Gov’t Code § 2001.038(a) (authorizing “validity or applicability of
a rule” to be “determined in an action for declaratory judgment if it is alleged that the rule or its
threatened application interferes with or impairs, or threatens to interfere with or impair, a legal
right or privilege of the plaintiff”).
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) Texas Family Code Section 54.011(f)
prohibits the Department from assisting Dilley and Karnes in prolonging detention of immigrant
children in secure facilities, see Tex. Fam. Code § 54.011(f); (3) the FRC Rule is not in harmony
11
with the general objectives of Chapter 42 of the Texas Human Resources Code; and (4) the
Department adopted the FRC Rule without convening the required statutory “work group,” see
Tex. Hum. Res. Code § 42.042(i).
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 Tex. Hum. Res. Code § 42.002(4) and runs counter to the general objectives of
the Texas Human Resources Code and is, therefore, invalid.” Appellants challenge the trial
court’s summary determination, asserting—as they did in their motion for summary judgment—
that (1) Chapter 42 of the Human Resources Code provides “ample statutory authority” for the
Department to have promulgated the FRC Rule, (2) the FRC Rule was adopted in substantial
compliance with the applicable procedural requirements, (3) and Section 54.011 of the Family
Code does not apply to the circumstances here.
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. Tex. Hum. Res. Code
§ 42.002(3), (4) (defining “child-care facility” and GRO, respectively). Appellees allege that for
over ten years, until the Flores decision and ICE’s new immigration policy, the Department
agreed that Chapter 42 does not authorize it to license or regulate facilities such as Dilley and
Karnes, where children reside with their parents. Among other evidence in the record, they cite
former Department Commissioner John J. Specia’s statement in May 2015—in response to a
request that the agency shut down Dilley—that “children reside at this facility with their parents.
12
It is for this reason that DFPS has neither jurisdiction nor standing.” Appellees allege that the
Department did an “about-face” just a few months later, after the Flores decision, when Dilley,
Karnes, and ICE “aggressively sought” child-care licenses and the Department shortly thereafter
promulgated the FRC Rule. While we note the alleged change in the Department’s construction
of Chapter 42 concerning its authority thereunder, we give that construction no deference
unless we find the relevant statutes ambiguous, which we do not. See Southwest Royalties,
500 S.W.3d at 405.
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.
Tex. Hum. Res. Code § 42.002(3). A GRO is a “child-care facility that provides care for seven
or more children for 24 hours a day, including facilities known as residential treatment centers
and emergency shelters.” Id. § 42.002(4). A GRO is, thus, a subset of a child-care facility. The
Department contends that Dilley and Karnes are GROs because they provide twenty-four-hour
“care”—including food and shelter—for seven or more children, meeting the definition in
Section 42.002(4), and that the FRC Rule designating Dilley and Karnes as GROs and regulating
them as such is therefore expressly authorized by statute.6 See 26 Tex. Admin. Code § 748.7(b)
6
While the FRC Rule does not expressly identify Dilley and Karnes, it defines FRCs as
centers (1) operated by or under contract with ICE to enforce federal immigration laws (2) at
which each child detained is with a parent or other adult family member who remains with
13
(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 Tex. Hum. Res. Code §§ 42.041–
.068 (Subchapter C, entitled “Regulation of Certain Facilities, Homes, and Agencies”); see also
id. § 42.041 (providing that “[n]o person may operate a child-care facility . . . without a license
issued by the [D]epartment” and listing several facilities exempt from licensing requirements).
We disagree, as explained below and considering Subchapter C in the context of the entirety
of Chapter 42.
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
the child and provides “the direct care” for the child except for “specific circumstances”
when the child is cared for directly by the center or another adult in the custody of the center.
26 Tex. Admin. Code § 748.7(a). The rule does not explain what would constitute “specific
circumstances,” but evidence in the record indicates that it might include periodic parental
hospitalization or illness (which has occurred only six times in the several years of the centers’
operation). It is undisputed that Dilley and Karnes are the only facilities in Texas meeting the
FRC Rule’s definition of “family residential center.”
14
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 Tex. Hum. Res. Code § 42.002(3), implying that the “care” of children
contemplated to occur in such facilities is in the absence of a child’s parents. This definition and
the relevant, common, and ordinary meanings of “care” and “child care” lead to the only
reasonable conclusion that the legislature granted the Department express and implied authority
to regulate and license facilities that are charged with the responsibility for a child’s health,
safety, and well-being in lieu of a parent’s usual responsibility therefor—that is, during a
parent’s absence. Thus, the FRC Rule that first defines an FRC as a center at which a child
is “detained with a parent or other adult family member, who remains with the child” and
who “provides the direct care for the child,” 26 Tex. Admin. Code § 748.7(a) (emphasis added),
but then classifies such a center as a GRO (i.e., a type of child-care facility that is charged
with twenty-four-hour responsibility for children’s health, safety, and well-being) exceeds the
legislature’s grant to the Department of licensing authority over “child-care facilities.” Because
parents reside at the FRCs with their children, the FRCs are not GROs.
15
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.
Tex. Hum. Res. Code § 42.201(1). FRCs (i.e., Dilley and Karnes) indisputably meet this
definition of “shelter”—they are supervised, privately operated, and designed to provide
temporary living accommodations to undocumented families engaged in deportation
proceedings. Should a “shelter” wish to provide “shelter care”—defined in Section 42.201 as
“child care that is provided . . . while [the child’s blood-related adult or managing conservator] is
away from the shelter,” among other requirements—it must either (a) obtain a temporary shelter
permit (TSP) from the Department or (b) be licensed under Subchapter C (i.e., as a child-care
facility). See id. §§ 42.201(2), .202(a), (b). A shelter that holds a TSP “is not required to hold a
license under Subchapter C to operate a shelter day-care facility.”7 Id. § 42.202(c). But a
“shelter day-care facility . . . is not a child-care facility, as defined by Section 42.002, and the
provisions of this chapter and the department’s rules that apply to a child-care facility licensed
under Subchapter C do not apply to a shelter day-care facility.” Id. § 42.207 (emphasis added);
see also id. § 42.201(3) (defining “shelter day-care facility” as “a shelter that provides shelter
care for not more than 24 hours a day, but at least four hours a day, three or more days a week”).
Furthermore, a shelter need not obtain either a TSP or a Subchapter C license if it provides
7
It is undisputed that Dilley and Karnes hold TSPs. The Department issued Dilley a TSP
on May 22, 2015, and it issued one to Karnes on August 4, 2015.
16
shelter care for: less than four hours a day or three days a week or six or fewer children.8
See id. § 42.202(e). Because Subchapter G expressly excludes shelter day-care facilities from
the definition of Subchapter C “child-care facilities,” it follows that the Department is expressly
prohibited from requiring shelter day-care facilities to be licensed or adhere to licensing
regulations that apply only to child-care facilities.
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. id. § 42.201(2) (defining shelter care). But this argument
ignores the statutory text and context. First, as already explained above, Subchapter C applies
only to “child-care facilities,” which do not include facilities where children reside with their
parents. Secondly, because shelters need not obtain either a TSP or a Subchapter C license if
they provide only very limited “shelter care”—that is, child care for less than four hours a day or
three days a week or for six or fewer children, see id.—it follows that shelters that do not provide
any shelter care at all (i.e., shelters that provide child care only while parents are onsite) need not
obtain either a TSP or a Subchapter C license (because “shelter care” that is provided for zero
children or for zero hours or days per week necessarily fits into the “less than” category in the
definition). Construing Subchapter G as the Department proposes would result in no licensing
requirement for shelters providing child care while a resident parent is offsite yet requiring
8
The record shows that some mothers at Dilley and Karnes require child care during
brief periods when they are attending legal appointments or other brief meetings onsite, and
while it shows that there have been a few times when mothers have been hospitalized briefly
offsite, there is no evidence (or allegation) that child care has been needed or provided for more
than six children at a time. Cf. Tex. Hum. Res. Code § 42.201(3).
17
licensing while a resident parent is onsite—an unreasonable construction that is unsupported by
the statutory text.
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 id. § 42.041(b)(3) (emphasis added).
The only reasonable construction of the cited statutes in Subchapters C and G, reading them as
a whole and in the context of the entire chapter, is that the legislature’s express and implied
delegation of authority to the Department to regulate and license facilities does not encompass
facilities such as FRCs at which parents reside with their children.
We hold that the Department lacks the statutory authority to require the Dilley
and Karnes facilities to obtain GRO (or other Subchapter C) licenses and, accordingly, lacks the
statutory authority to promulgate rules regulating them as GROs or other child-care facilities.
The FRC Rule is thus invalid, and the trial court did not err in invalidating the rule under the
APA.9 See Railroad Comm’n v. ARCO Oil & Gas Co., 876 S.W.2d 473, 477 (Tex. App.—
Austin 1994, writ denied) (“An agency rule is invalid if (1) the agency had no statutory authority
to promulgate it; (2) it was not promulgated pursuant to proper procedure; or (3) it is
unconstitutional.”). We overrule appellants’ second issue.
9
Although the trial court explained its reason for invalidating the rule slightly
differently—that it “contravenes Tex. Hum. Res. Code § 42.002(4) and runs counter to the
general objectives of the Texas Human Resources Code”—we nonetheless affirm its holding that
the rule is invalid under the APA because appellate courts may consider all grounds for summary
judgment that a movant has preserved for review and necessary for disposition of the appeal,
even if the trial court did not expressly rule on the grounds. See Cincinnati Life Ins. v. Cates,
927 S.W.2d 623, 626 (Tex. 1996).
18
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
19
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.
Whether the trial court properly issued injunctive relief
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
10
The temporary injunction—which was set to expire “no later than the date that this
Court issues its decision after a final trial on the merits”—enjoined the Department from issuing
an FRC license to Dilley (it had already issued a license to Karnes) and ordered the Department
to “continue to investigate and report any allegations of abuse or neglect, standards deficiencies,
or violation of rule of law” at Dilley and Karnes.
20
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
21
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 and regulate them as GROs. The trial court’s Amended
Final Judgment prohibited the defendants from superseding the judgment while on appeal,
and appellants do not appeal this ruling. See Tex. R. App. P. 24.2(c) (providing supersedeas
procedures for non-money and non-property judgments). Because the trial court’s judgment was
not superseded, it is effective during the pendency of any appeals, and the trial court has an
affirmative duty to enforce it. See Tex. R. Civ. P. 308. However, because the FRC Rule is
invalid and the Department has no authority to license FRCs or apply licensing requirements to
them, including the Minimum Standards,11 we hold that the portion of the trial court’s Amended
Final Judgment ordering the Department to provide “regular and comprehensive oversight” of
Dilley and Karnes, including its specific order that the Department “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,” cannot stand because it conflicts directly
with the trial court’s judgment on the merits of the plaintiffs’ rule challenge.12 We sustain
appellants’ final issue.
11
While Chapter 42 requires the Health and Human Services Commission to adopt by
rule “minimum standards” that, among other objectives, “promote the health, safety, and welfare
of children” attending child-care facilities, the Human Resources Code delegates to the agency
the discretion to delineate the specifics of such standards. See Tex. Hum. Res. Code § 42.042.
12
Appellants do not take issue with the portion of the trial court’s judgment that
enjoins the Department from issuing licenses under the FRC Rule, and the Department does not
challenge the trial court’s denial of its right to automatically supersede the judgment. See Tex.
R. App. P. 24.2(a)(3). Appellant GEO additionally argues that the “injunctive” portion of the
Amended Final Judgment violates appellants’ rights to due process because appellees’ “Motion
22
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
to Prevent Automatic Suspension of Judgment Pending Appeal” did not provide adequate notice
about the issues to be considered at the hearing, which effectively was an “unnoticed hearing” on
an “unfiled motion to modify the December 2 Final Judgment” and an “unfiled motion for
reconsideration.” We need not address this argument of GEO because of our holding that the
trial court improperly issued injunctive relief.
23