this new injunction also raises serious federalism concerns because it allows an unelected federal judge to veto the child placement decisions that the texas legislature entrusted to texas agency officials in texas though the point is that the state has a strong sovereignty interest in making child placement decisions in the less there has been a specific constitutional violation and it's to be remedied and hear what the district court has done its constitutional violation already been determined that's not before us that's exactly correct which barksdale and my point is that has been determined and this court has affirmed some limited provisions to remedy constitutional violations that were determined but at the same time it instructed the district were no more that no further changes it was saying no new injunctive provisions and no changes to the limited injunctive provisions that we have  we made if it's necessary in other words we don't we hope not to have to transfer children and we hope the situation doesn't come up where a provider says for example it's one provider has already done i'm not going to a number of providers have already said i'm not going to accept additional children from the p m c in this placement because of the supervision requirement one provider has left the system entirely because of that we hope that that  continue we hope that there is not a need for that but in order to retain flexibility it may be necessary in the future to do this on so later what about this testimony that the red briefs cites ms blackstone assistant commissioner testified at the hearing that the cottage phone providers that we have spoken to by and large and this is confirmed i think in the monitors report they really want to serve the children that are in their care they're doing their best but the requirement of awakening supervision has been tremendously difficult for them both financially and the state has stepped in to provide assistance in that regard but for some of them also there's just that it's injunction we have to appeal it within thirty days or lose the right to do so we couldn't wait until we needed to do it and then come back and try to appeal later so we appealed it at that time and in large part because of the medical problem that this is simply a structural problem with the district court has gone beyond the scope of what this court contemplated in the proceedings on remand simply to limit it to implement modified injunction as written without any further changes so what  clear st of all it's too late in the sense that this was not an issue that came up previously when the weight supervision order was expanded and not expansion was upheld by this court there was nothing in that provision that said the state cannot move they had a valid points but that that that this pre approval or do we want to call it is an appropriate change but let's stipulate that you may have a point that that was barred to the district court by a previous r never sought this pre clearance requirement at all and so i don't think it's the case that i don't think you can ever just say you know that that motion is barred under our previous mandate i think it would depend on the circumstances if it were this exact situation of the rescue formal sixty b and what the purpose of the motion to seduce to change the substantive terms of the modified injunction that this court said no further changes to it then yes i think district court would have to be very careful to avoid running afoul of the mandate because otherwise if if all the court met was the district court could make whatever changes it want to be in one of the jumps and i don't think it would have said implement the modified injunction with no further treaties kelso can you tell help a little bit here with the idea that withhold further changes must not mean really strictly no further changes courts implementing injunction for caseworker workload assessments didn't violate the mandate will allow now those to be changed in the same opinion where it gave this if these instructions it allowed some flexibility so are you saying it had flexibility that day but we shouldn't have flexibility to stay what is a not sure flexibility if it's significantly circumscribed to a future eligibility and the to answer your question the distinction is the mandate was different between the two decisions in the st decision this court remanded with instructions to it was for without further changes that's a very different mandate and a much more a limiting instruction for the district court to be carried out i'd like to point out as well that that the notion that this is somehow implementing your work a supervision order is simply wrong doesn't further its purpose it's a change in the terms of that or the or the awake i supervision order resulted from the just records finding that placements with more than six children to help under a single roof left without overnight supervision that there were the risks of of bad behavior going on at night that it that it wanted to stop but it never made any such finding employers never sought any such finding with respect to smaller placement of six or fewer children and so if these larger placements are riskier for children and is a better rule to allow the state if necessary to move children into to those placements to put it another way is it better to eliminate risk tha simply to monitor and numerous i'd like to also get back to the point that your honour's raised them in the questions the purpose of this the without further changes language was to clearly establish the parameters of the modified injunctions of the that we the defendants would come into compliance with them and bring an end to this decade long good occasion and if the district court can move the compliance goalposts by changing the terms of that modified injunction i submit to the court that we're nowhere near the end of this litigation because we're going to continue to have disagreement over those changes and probably more pupils this is the th time that the court has for oral argument you know appeals arising out of this litigation i would hope it would be the last but i think what that depends upon it is the importance of forcing the mandate rule to limit the proceedings in the district court to simply implementing the modified injunction as written and as modified by this cour you you argue that the pre approval injunction is not needed to ensure compliance with the twenty four hour supervision and johnson the district court disagrees do we owe the district court any that the court the district court of course is free to enforce their work and supervision provision as written has already done so and we have paid one hundred fifty thousand dollars in fines for three days after the november  h show cause hearing that we're not able to comply with all of the verification verification requirements for that's the district court certainly free to go about that what it cannot do is change the terms of the way to a supervision order in the name of implementing it and make something that was previously waffle that is moving children and putting them in a smaller safer placement and now say that can't be done without prior permission under threat of injunction i understand judge parksville your point you take your point about federal judges and again i have nothing but a great respect for federal judges for this court in particular but i am saying though  my point about federalism is that the supreme court has recognized that these institutional reform injunctions raise sensitive federalism concerns and the power of the state to make placement decisions for the foster children in its custody is a very sensitive concern in that vein and here it's undisputed that texas law in trusts a there's a constitutional while lation that's not a question that's exactly right on why you're gone back and open about the sensitivity of children's placement in such a when all were dealing with is was the mandate foll and and the answer that judge barksdale is because this is an additional requirement being tacked on it was not something that was litigated previously it was not something that this court upheld it is not part of the modified injunction and so if i were here complaining about things the provisions that this court upheld and said were necessary to remedy constitutional violations then yes your your point would be made on that but here we're talking about a new additional requirement that this not a whole and did not give the district court the freedom to add on to the modified injunction in the name of implementing it if if the court is this record we're going to be interpreted full time supervision to all children in group placements immediately it mandated the district court to implement that order and  most egregious problem with these large group placements is a lack of overnight supervision and time you know there were homes with seven or more rays special serious concerns that are that are not present or at least less presence in smaller homes is not correct that that is correct your honor if that is true then why is it just record now suddenly saying we want to discourage transfers from the more serious smaller place but on the whole point of a pre approval regime is you know think of it like a pre clearance in the voting rights context it's to slow this down to tax the process and presumably to give the court the opportunity to reject what it previously would never tax is and that doesn't have to be the reason for this new provision well your honor the there there may be something to slowing it down but just to you know there's this whole as you goes toward estates mischaracterizations and i put that employer all but there's at least three different ways in which they have mischaracterized the approval provision of how the approval provision works you know it doesn't say it doesn't say that this that the district court is going to not approve all or this kind of knew there is a there is a difference between an orderly transition to smaller placements which we think would be a welcome development and i think the district court would agree with that and a herky jerky of corrupt moving of children around perhaps just to meet it take nicole numerical threshold or technical compliance with the order isn't this a substantial meaningful change in the law in this case from what it was before you're all right i don't think it is a substantial or a substantive change at all it is it is it's not a change at administrative measure for implementing this order there there are you know there there are two concerns to conserve smaller placement for less of a risk of inadequate supervision but for children who remain in the larger placements as judged by our scale pointed out that has been adjudicated the lack of supervision in these larger placements has already been adjudicated as a constitutional violation and this court has ordered the remedy of full time supervision so they're the the primary purpose of the pre approval provision and the rest of the district courts contempt order which the state has not appealed for you know the state doesn't challenge the finding of contempt and that was out of compliance is to ensure that for the children who remain it in the larger placement and that the full time supervision is implemented eleven thing that the approval provision prevents is just playing a shell game with numbers juggling children so that the state can report that it is in compliance because oh on this day this particular placement has only six children because we  which is exactly one of the biggest revisions to deal with that problem and if we need to clarify the previous ruling to make that point we can do that i guess what i'm wondering though is you know at what point approval provision is not a change to the injunction affirmed by this court it is it is implementing that provision your honor asked you know isn't the scenario of moving children playing a shell game just to just to have the numerical rush hold isn't that something that violates the the existing in jump ship and the answer to that is ye that's why that's why this provision is merely an administrative measure to help implement that injunction district court is well aware of the history of this state dismissing at times dishonest attitude and pond got to work compliance in this case and that was a very large focus of the contempt proceeding is you know the state's history of not being forthcoming not being candid about what is actually going on in the system is there anything that would prevent mandate but this you know this provision that is it in front of the court today is it is not an example of where you would need to do that because it is not a substantive change to the injunction it is if it goes toward implementing the injunction to you to illustrate that i'd like to touch on one thing that hughes argued which is that this is move the goalpost d and and you can't keep moving the goalpost or compliance it doesn't move the goal it doesn't move the goal it helps line up the character to get it through the goal that this is the state is in full compliance with this core mandate to implement full time supervision and all placements with with seven or more well i just wanted to follow up on your goal post being in you keep saying it's just didn't minister to measure it's not a new injunction but the state of texas could be found liable for violating this administrat starting the kicker where the ball is down on the play before you're going to make the state always go to the middle of the field to line up right middle of the goal and if you always that's a new injunction to make you know in your football analogy i know we're not talking about football we're talking about children a very serious subject but you used the ball analogy it's requiring the state to do something different it's not just a means to do what you were already doing before so going to the middle of the phone conference early after after the court's mandate issued where the judge said you know i'm i'm available on a two hundred and forty seven basis and that has happened you know as as we just because the state actually has not  invoked this provision it's been almost a year and they're saying that they haven't had a need to they also claim that they're now in full compliance so there should be no real need to as long as they stay in compliance but there are other would not disagree that there are examples of the states coming to the court through the monitors or various exceptions to other other provision injunction and the court has been very responsive and i don't think there's an instance where she has said no when there was a good reason to make an exception in the case of the approval provision we're not even talking about an exception in the state and it's reply brief mentions that the state shouldn't have to come and ask for an exception and there's not really an exception this provision doesn't say you can't move children i transfer some of these kids to an environment that's six of your previous to this change they can do so right now right if they were if they were moving the children for a year before the change they could do it now they have to go to court and seek approval and the judge may say twenty four hours but you know given the discussion about distrust of the state's motives in the past i assume that's going to be a happier sarah proceeding that may take time the premise were correct the premise that the state would have to i mean frankly even if the premise were correct it wouldn't be an issue just as a realistic matter because jeff jack really does make herself tw forty seven available for this case but more importantly the type of transfer you're talking about would not be within the scope of this order the the approval provision says if you are moving a child because of the all time supervision requirement not because if you have a home that already has full time supervision and there is some other threat some threat arises there and you're moving those  proceeding to figure this out otherwise what's the point  don't think so your are in particular if if the home has full time supervision then it clearly would not fall under this or now maybe to switch out the hypothetical a little bit if if the home had full time supervision and you learned that that there was something wrong with the  staffer who was providing full time supervision and that person had to be removed from that position and all of a sudden you had children who were without full time supervision that gap might that might fall within the scope of the approval provision but i think that you know the judge would be very responsive i think three i assume you agree though and i appreciate your working with the term i think i'm pretty sure point there ought to be a specific type pattern but i don't think it's an absolute fact pattern you agree that there could very well be a fact dispute that we don't have to be resolved the state says this the twenty four hour person is unsafe we're moving now and we you know we don't have time to find somebody else so we're just to start answering these kids to a safer environment and you say no that's not true this is a sham the state's lying again and we want our court would not take some time that there might take some time i think that that would be a situation where if there were a real emergency where you could resolve any potential practice at a later time you know the st if they could move the children it's an emergency and contemporary and came out that would be i would be part of their showing cause why they shouldn't be held in contempt because because that was not not of violating the ice that's really rolling the dice to have to say well we're going to respond to the contempt proceedings against us with is evidence that's that's that's a risky move for a client to have to do c previously said it of court such as ours can say we're done we're not going to do anymore appeals and we're done this mandate says specifically without further changes do you agree that the court was trying to say it was done i have i think your honor that the court may be saying that it's done with the substantive reforms but you have this order that we're here talking about does not fall into that category it goes toward to begin implementing which is the other the other three word phrase that is that is in that operative provision of stupid verb to be the mandate also affirmed determination provision of the permanent injunction whereby the district court is to retain jurisdiction for a period of three years after the state comes into compliance so this court contemplated that this would be a multi year process and the approval provision cannot be divorced from the full time supervision injunction because it applies only to situations that directly result from the all time supervision injunction so know it is it cannot be divorced from that which shows that it is it is directly tied to implementing that injunction it's as  if there is a if there is a move that needs to be made because of the full time supervision injunction on talk to me the brakes on it there is no indication that the district court with reasonably withholder approval approval there's there's no indication that the state even feels the need to invoke invoke this probate if the state comes into full compliance with the full time supervision order and that is certified that will be a grounds for for ending this litigation and once it's in full compliance with with the overall injunction and the approval  and then several months later the one of the parties feels like the other party is not in compliance with the injunction you would go into some form of contempt proceeding with yes your honor well here it seems like the contempt receiving was   for the injunction was fully in effect and i could be wrong but i don't know why the district judge in effect has written a new injunction the contempt proceedings began with our motion to show cause in october that year so the the content you can temper seedings were are targeted to compliance with the full time supervision injunction and in effect the district judge has rewritten the injunction which is contrary to what our court order and i don't know why this could not follow the separate track and not rewritten the injunction that our court in the nd case you know said would get rid of all of these items you can keep these now implemented this without further changes you think the the approval provision is intended to implement the full time supervision injunction but you told me the injunction was already in effect the the full time supervision injunction was in effect and the state was not in compliance with that by november of last year well then start a separate proceeding but don't rewrite the injunction well i've just wanted to keep this up thank you judge thank you your was the one that was an issue in the november contempt hearing and this new injunction oros at the tail end of that contempt hearing just came out it wasn't something the plaintiffs asked for so i think you're correct in looking at it assange this is a new injunction it should be on violation and i don't see how that issue is properly before the court when it hasn't been raised in a procedurally proper way and as i talked about earlier there are ways conceivably that rule sixty b perhaps the changes could be considered but the whole purpose of the no further changes language was to do very carefully circumscribe changing the parameters of the injunction because i mean i think you're going about sixty but under this ban it will be that is a sort of a futile proceeding isn't it when i think it should be with respect to this particular change precisely because it's a substantive amendment when there wasn't was shown for the need of again if the complaint is we're not complying with the witness supervision we can be held in contempt for that as we work but that's not a reason for rewriting the injunction that's a reason for enforcing the junction when i take your point that sounds like you're basically litigating that new provision on the merits my point is is that this is no want to point out it's a process point can we on this panel engage in that discussion and say we agree with this new provisional we as you say disagree  that today or does i need to be saved for a future val and i have at the risk of repeating myself judge joe i would say it would be improper for the court to do it if there's a man and it will violation in any any discussion would be dicta and then i think we get into the problem that what this panel might think about it unless the animal reserve the case for itself or subsequent appeals as the prior panel that any future appeal would come to a different panel they might feel differently about it and i suggest that that raises more concerns  then perhaps would be warranted to do counsel talked about the contempt order is correct we did not appeal that it's correct we were not in compliance with it because of the cottage homes  but that doesn't because we did not appeal it does not mean we accepted all of the findings that went in that contempt order and i specifically just wanted to raise the point of the what we have been accused of of misrepresenting or lying to this court about compliance with the original foster group home supervision or that is simply an accurate representations of clients were correct they did not somehow become retroactive it so the notion that as regrettable as lisa black's incorrect testimony was we did not cause us to make any misrepresentations to this court or to the district court of complying with the witness supervision orders it's also raised the point that we can always go to the court through the monitors and i point out there with the cottage homes we did that in september of last year we said that it's not clear to us how this expanded await night requirement wise  context where many of the colleges have six or fewer kids and the monitors took that back to the court and they understood that we were in a holding pattern and then we got to the show cause hearing in november the monitors filed a report on the eve of that hearing  for taking the position that a witness supervision should not apply in colleges a six or fewer homes which is i think entirely consistent with the prior ruling that there is no constitutional risk to children in placements of six or fewer homes thank you thank you council for your arguments today this case is submitted and this concludes our arguments for today and we will resume tomorrow afternoon to continue hearing cases on the dock