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 353RD DISTRICT COURT OF TRAVIS COUNTY NO. D-1-GN-15-004336, THE HONORABLE KARIN CRUMP, JUDGE PRESIDING DISSENTING OPINION TO DENIAL OF EN BANC RECONSIDERATION This case involves a challenge to a rule adopted by the Texas Department of Family and Protective Services (DFPS) that authorizes the State to issue child-care-center licenses to immigrant detention facilities in Texas known as “family residential centers” (FRCs). The FRCs are operated by private prison companies under contract with the federal government, specifically U.S. Immigration and Customs Enforcement (ICE). Appellees, who were plaintiffs in the court below (Plaintiffs), challenged the validity of the rule on several grounds, including that the rule exceeded DFPS’s statutory authority, prolonged the amount of time that children may be detained in the facilities, and allowed children to be detained in conditions that endangered their safety. Appellants, who were defendants in the court below (Defendants), filed pleas to the jurisdiction asserting that Plaintiffs lacked standing to assert their claims. The district court denied the pleas to the jurisdiction and declared the rule invalid. Defendants appealed the district court’s judgment. On September 5, 2018, the appeal was submitted on oral argument to this Court. On November 28, 2018, the Court reversed the district court’s judgment and rendered judgment granting Defendants’ pleas to the jurisdiction, concluding that all Plaintiffs lacked standing to assert their claims. See Texas Dep’t of Family & Protective Servs. v. Grassroots Leadership, Inc., No. 03-18-00261-CV, 2018 Tex. App. LEXIS 9643, at *18 (Tex. App.—Austin Nov. 28, 2018, no pet. h.) (mem. op.). On December 14, 2018, the Court overruled Plaintiffs’ motion for rehearing. On January 11, 2019, Plaintiffs filed a motion for en banc reconsideration. Today, three of the six justices on this Court have voted to grant ...
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