Grassroots Leadership, Inc. v. Texas Department of Family and Protective Services

Supreme Court of Texas
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No. 19-0092
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Grassroots Leadership, Inc., et al.,
Petitioners,

v.

Texas Department of Family and Protective Services, et al.,
Respondents

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On Petition for Review from the
Court of Appeals for the Third District of Texas
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PER CURIAM

Justice Blacklock did not participate in the decision.

In this suit, we determine whether the plaintiffs have standing to
challenge a Department of Family and Protective Services licensing rule
governing immigration detention centers. The court of appeals
concluded that the plaintiffs—detained mothers, their children, a
day-care operator, and an organization representing their interests—
lacked standing to sue. Because the detained mothers and their children
allege concrete personal injuries traceable to the adoption of the rule,
we hold that they have standing. Accordingly, without hearing oral
argument, we grant the petition for review and reverse the court of
appeals’ judgment. We remand to the court of appeals for consideration
of the parties’ remaining jurisdictional issues and the merits, as
appropriate.
I
In 2014, U.S. Immigration and Customs Enforcement began to
detain undocumented families with children at two residential
detention centers, known as the Dilley and Karnes centers.
Respondents CoreCivic and GEO Group are private prison companies
that operate these facilities.
In 2015, a federal court ruled that the Dilley and Karnes centers
lacked an appropriate childcare license and thus the operators 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). The federal court enjoined family
detention at the two facilities. Id. at 887.
The Department, also a respondent, then promulgated a rule,
first on an emergency basis and then formally, establishing licensing
requirements for family residential centers like the Dilley and Karnes
centers.1 26 TEX. ADMIN. CODE § 748.7. Before the Rule’s adoption, state
regulations prohibited licensed facilities from housing adults and
children in the same bedroom except in narrow circumstances. 31 Tex.

1 At the time of trial, Chapter 42 of the Texas Human Resources Code
gave the Department of Family and Protective Services childcare licensing
authority. Since then, statutory restructuring has given that oversight to the
Health and Human Services Commission. Both state agencies are parties to
this lawsuit.

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Reg. 1995, 1996 (2006), adopted by 31 Tex. Reg. 7455, 7456 (2006),
amended by 47 Tex. Reg. 2248, 2248 (2022) (former 26 TEX. ADMIN. CODE
§ 748.3361) (Tex. Health & Hum. Servs. Comm’n); 31 Tex. Reg. 1972,
1973 (2006), adopted by 31 Tex. Reg. 7440, 7440 (2006), amended by 47
Tex. Reg. 2248, 2248 (2022) (former 26 TEX. ADMIN. CODE § 748.1937)
(Tex. Health & Hum. Servs. Comm’n).2 To permit the Dilley and Karnes
facilities to house families together, the amended Rule eliminates that
limitation:
A family residential center is not required to comply with
. . . (2) the limitation on 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 . . . .
26 TEX. ADMIN. CODE § 748.7(c).
Petitioner Grassroots Leadership, a nonprofit advocacy group,
sued the Department to challenge Rule 748.7. It later amended its
petition to add several detainee mothers, individually and on behalf of
their children, and a day-care operator as plaintiffs. These parties also
join as petitioners here.3 The private prison operators intervened as
defendants.
The plaintiffs allege that the Dilley and Karnes centers have
permitted unrelated adults to share bedrooms with children in reliance

2 At the time Grassroots Leadership filed suit, Texas Administrative
Code Sections 748.3361 and 748.1937 both narrowly limited adult-child
room-sharing. Since then, Section 748.1937 has been amended to allow
children to share bedrooms with parents and adult siblings. 26 TEX. ADMIN.
CODE § 748.1937.
3 Only the detainees’ standing is before this Court.

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on Rule 748.7(c), and that one minor was sexually assaulted while
sharing her room with an unrelated adult. The plaintiffs sought a
permanent injunction and declaration stating that the Department
lacked authority to adopt Rule 748.7 because, they alleged, it increased
the safety risk to the detainees and their children. The plaintiffs also
alleged that the Rule’s adoption has resulted in longer detention periods
at the centers.
The respondents filed pleas to the jurisdiction, contending that
the plaintiffs lack standing to challenge the Rule. The trial court
granted the jurisdictional pleas in part, dismissing the plaintiffs’ claims
under the Uniform Declaratory Judgments Act. It denied the pleas as
to the remaining grounds and granted the plaintiffs’ claim for
declaratory relief under the Administrative Procedure Act. The court
declared Rule 748.7 invalid because it “contravenes TEX. HUM. RES.
CODE § 42.002(4) and runs counter to the general objectives of the Texas
Human Resources Code . . . .” The court enjoined the Department from
granting licenses under Rule 748.7, but it ordered the Department to
otherwise oversee the centers pending appeal.
The court of appeals reversed, holding that all of the plaintiffs
lack standing to assert their claims. ____ S.W.3d ____, 2018 WL
6187433, at *1 (Tex. App.—Austin Nov. 28, 2018).4 With respect to the
detained mothers’ claims, the court of appeals concluded that their
alleged injuries were not traceable to the adoption of Rule 748.7, because
the Rule “does not allow a minor to share a bedroom with an unrelated

4 In this Court, Grassroots Leadership and the day-care operator do not
challenge the court of appeals’ ruling.

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adult.” Id. at *6. Based on this interpretation, the court held that the
detainees did not allege an injury traceable to the Rule. Id. Finally, the
court of appeals held that any increase in the length of detention is not
traceable to the Rule but instead resulted from the interplay of federal
policy and the federal consent decree. Id. at *7.
The en banc court of appeals denied reconsideration, with three
justices dissenting. Tex. Dep’t of Fam. & Protective Servs. v. Grassroots
Leadership, Inc., 2019 WL 6608700, at *1 (Tex. App.—Austin Dec. 5,
2019).
In this Court, the detained mothers argue that they have alleged
concrete injuries traceable to Rule 748.7 that are redressable in state
court. In cross-petitions, the respondents contest the detainees’
standing and raise issues that the court of appeals did not reach.
II
In Heckman v. Williamson County, we held that plaintiffs have
standing to sue when they allege a concrete personal injury traceable to
the defendant’s conduct, and the relief requested is likely to redress that
injury. 369 S.W.3d 137, 154-55 (Tex. 2012). In this respect, Texas’s
standing requirements parallel federal standing doctrine. Id. at 154.
We examine the pleadings in light of this standard.
A
Contrary to the court of appeals’ construction, the text of
Rule 748.7(c) does not confine adult-child bedroom sharing to family
member adults; instead, the Rule permits bedroom sharing between a
child and an unrelated adult, so long as the adult-child bedroom sharing
facilitates housing a child with the child’s family member:

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A family residential center is not required to comply with
. . . (2) the limitation on 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 . . . .
26 TEX. ADMIN. CODE § 748.7(c). Rule 748.7(c) thus removes the general
limitation on adult-child bedroom sharing when it permits the child to
remain with his or her family, but it is unconstrained as to who may
share the room with the child. The plaintiffs complain that some
detention residences contain two or more unrelated families, and in
some of these, unrelated adults share a bedroom with a child. Before
Rule 748.7(c), the then-effective Sections 748.3361 and 748.1937
generally prohibited adults’ sharing of rooms with children. The current
versions of those sections still generally prohibit such room-sharing
unless the adult is a parent or sibling of the child. 26 TEX. ADMIN. CODE
§§ 748.3361, .1937.
Because the Rule permits the facilities to house children with
unrelated adults—a prohibited arrangement without Rule 748.7(c)—the
harm the plaintiffs allege from the housing arrangement is “fairly
traceable” to the Rule. See Heckman, 369 S.W.3d at 157 (noting that a
plaintiff must “merely show that his injuries are ‘fairly traceable’ to
defendants” but need not show a particular defendant’s responsibility
for the injuries in question (quoting Allen v. Wright, 468 U.S. 737, 751
(1984))).
The respondents argue that the harms alleged are not traceable
to Rule 748.7(c) because the Dilley and Karnes family residential
centers housed children with unrelated adults before the Rule’s
adoption. Thus, they argue, the Rule did not cause the harm alleged.

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But the 2015 federal order prohibited such activity at the Dilley and
Karnes centers. Following that order, the facilities could not house the
child detainees in bedrooms with unrelated adults absent licensure
under Rule 748.7.
In Bennett v. Spear, the U.S. Supreme Court acknowledged that
traceability does not require a defendant’s action to be the sole cause of
harm. 520 U.S. 154, 169-70 (1997). An injury can be traceable to an
action by a defendant when the defendant, “by determinative or coercive
effect upon the action of someone else,” caused injury to the plaintiff. Id.
at 169. Though the Dilley and Karnes centers previously housed
children with unrelated adults before the Department’s oversight,
Rule 748.7(c) has a “determinative or coercive effect” on housing at the
centers; the operators cannot deviate from Department standards
without jeopardizing licensure, and thus the ability to house family
detainees altogether.
Accordingly, we hold that the injuries the detainees allege are
traceable to the adoption of Rule 748.7(c).
B
The court of appeals did not address the concrete-injury and
redressability elements of standing, but we do so here.
To satisfy standing’s requirements, the alleged injury must be
concrete. Heckman, 369 S.W.3d at 154-55. Plaintiffs must allege
“threatened or actual”—not hypothetical—injuries. Farmers Tex. Cnty.
Mut. Ins. Co. v. Beasley, 598 S.W.3d 237, 241 (Tex. 2020). The U.S.
Supreme Court has observed that a substantial risk may satisfy the
concrete-injury requirement for injunctive relief, if that risk is based on

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a reasonable inference from specifically alleged, current facts.
TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2210 (2021); Clapper v.
Amnesty Int’l USA, 568 U.S. 398, 414 n.5 (2013) (noting that standing
can derive from “‘substantial risk’ that the harm will occur,” but that
plaintiffs must plead and prove “concrete facts showing that the
defendant’s actual action has caused the substantial risk of harm”).
The plaintiffs have alleged that at least one detained child was
sexually assaulted by an unrelated adult with whom she shared a room
following Rule 748.7(c)’s adoption. Based on this concrete allegation, the
plaintiffs allege harm in the form of increased risk of such assaults to
minor detainees sharing rooms with unrelated adults, as well as the
invasion of the children’s privacy from such room-sharing. We have
recognized invasion of privacy as a personal injury. Crosstex N. Tex.
Pipeline, L.P. v. Gardiner, 505 S.W.3d 580, 594 (Tex. 2016). Because the
injuries alleged include the actual and impending harm of a legally
protected interest, the plaintiffs’ allegations are sufficiently concrete to
satisfy Constitutional standing requirements.5
Without the facilities’ licensure, the plaintiffs urge, family
detention cannot satisfy the Flores order. They seek either injunctive or
declaratory relief under the Administrative Procedure Act to forbid the
Rule 748.7 licensure of the facilities, which permits room-sharing with
unrelated adults. Should the plaintiffs’ allegations have merit, the relief

5 Because we have concluded that the detained mothers otherwise have
alleged an injury based on allegations of risk of sexual assault and invasion of
privacy, we need not address the additionally alleged injury of lengthened
harmful detention, which the court of appeals determined did not satisfy
standing’s traceability element.

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sought is likely to redress the claimed injury. See Heckman, 369 S.W.3d
at 154-55.
The parties dispute whether the Dilley and Karnes centers could
alternatively satisfy the Flores order by licensure as group residential
operations. See TEX. HUM. RES. CODE § 42.002(3)-(4) (providing that a
“[g]eneral residential operation” is a licensed “child-care facility that
provides care for seven or more children for 24 hours a day”). Group
residential operations do not permit unrelated adults to share rooms
with children. See 26 TEX. ADMIN. CODE § 748.3361 (narrowly limiting
adult-child bedroom-sharing in group residential operations).
Therefore, plaintiffs argue, even if the facilities are licensed as group
residential operations, plaintiffs’ risk is redressed by an order
prohibiting licensure under Rule 748.7(c). Without deciding whether
such licensure is available to the Dilley and Karnes centers, we agree
that the availability of alternative licensure does not affect the plaintiffs’
standing to challenge Rule 748.7.
* * *
For these reasons, we hold that the detainees have standing to
challenge Rule 748.7. Accordingly, without hearing oral argument, TEX.
R. APP. P. 59.1, we grant the petition for review and reverse the court of
appeals’ judgment. We remand to the court of appeals for consideration
of the remaining jurisdictional issues and the merits, as appropriate.

OPINION DELIVERED: June 17, 2022

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