### 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 You ng, in Her Of ficial Capa city as HHSC Executive Commissioner ; Corrections Corporation of America ; and The GEO Group, Inc. , Appellant s 1

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 an d as next friend for N.R.C.D. ; Y.E.M.A., for herself and as next friend for A.S.A. , Appellee s

FROM THE 353RD DISTRICT COURT OF TRAVIS COUNTY NO. D
- 1
- GN
- 15
- 004336 , THE HONORABLE KARIN CRUMP , JUDGE PRESIDING

O P I N I O N

This cause returns to us on r emand from the Texas Supreme Court. See Grassroots Leadership, Inc. v. Texas De p ’ t of F a m. & Protective S e rvs. , 646 S .W.3d 815, 821 (Tex. 2022) (per curiam)

. In our prior revie w of this cause, we determined that the plaint iffs

— including individuals prev i ously detained in two Texas immigration detention cente rs

— d id not hav e 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 aut omatically substituted for t he agencies ’ for mer comm issioners

.2

Ser vices and we therefore did not reach the mer its of the plaintiffs ’ claims

. See Texas Dep ’ t of Fa m. & Protective Servs. v. Grassroots Leaders hip , No. 0 3

- 18

- 00261

- CV , 2 018 WL 6187433 , at * 7 (Tex. App.

— Austin Nov. 28, 2018 ) (mem. op.) , rev ’ d , 646 S.W.3d at 821

. The sup reme
court reversed o ur judgment, determin ing that the former detain ees ha ve st a nding to ch allen ge the rule , and remanded to us “ for consideration of the rema ining jurisdiction al issues and the merits, as appropriate. ” Grassroots Leadership , 646 S.W.3d at 821

. On remand, we will reverse and v acate the trial court ’ s final judgment a s to part of the injunctive relief, but other wise affirm the re mainder of the trial court ’ s final jud gment

.
BACKGROUND Whi le the fact ual and pro cedural background of this dispu te is o utlined in depth in the su preme court ’ s opinion, see id. at 818

– 19 , we recount it briefly as necessary to frame the issues before us.

In this lawsuit, the p laintiffs

— mot hers and their c hildren de tained at two Texas immigration detention center s, a day

- care operator, and a n organization representing the detainee s ’ interes ts

— ch allenge a D epartment 2 licensing rule governing immigration d etention
centers. The pr ivate prison companies operating the de tention centers , kn own a s the D illey and Karnes centers, intervened as de fendan ts.

In 2014 , U.S. Immigration a nd Customs Enfo r ce ment (ICE) began to detain undocumented families with children at Dilley and Karnes. In 2015, a federal court enjoined t he facilities from detaining the families , finding that they lacked appropriate child

- care license s and

2 A t t he ti m e of trial , C hapter 42 of the T e xas Human R e so urces Code gave th e De partment child

- care - li censing aut hority. Since then, statutory restructur ing has given th at oversight to th e Texas Health a nd Human Services C o mmission , als o a part y to this lawsuit

.3

had violated a federal conse nt dec ree requiring that such facilities be stat e - license d 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 ( 9 th Cir. 2016)

.

T he Departme nt then pr o mulgated a rule, first on an emergency basis and then formally, establishing licensing requirements for what it defined as “ family residential centers ” (FRCs) and de signating FRCs as a ty pe of general residential operation (GRO) that “ must compl y w ith all associated requirements for GROs ” except for certain variances , including those provided f

or in the rule. See 26 Tex. Admin. Code § 748.7 (2022) ( T ex. Health & Hum. Ser vs. Comm ’ n , How are the se re gulations ap plied to family residential centers? ) ( the FRC Rule).
A mong those variances, and t o allow Dilley and Karnes to house families together, t he FRC Rule elimi nated a provision in s tate regulations (the so

- called “ Mi nimu m Standards ” ) prohib iti ng the housing of adults and children in the same bed room except in narrow circu mstances

. 3 See Grassroots Leadership , 646 S.W.3d at 818

.

The p laintiffs allege that Dilley and Karnes have permitted unrelated adults to share bedrooms with children in re liance on the FRC Rule , that one m inor child was sexu ally

a ssaulted while sharing her room with an unrelated adult , and that the FR C Rule has resulted in longer det ention periods 4 at the cent ers, which harms children . They sought a permanent

3 Si nce p laintiffs filed sui t, the Minimum Standards hav e been amend ed to allow children to share bed rooms with paren ts and adult siblings. See 2 6 Tex. Admin

. Code § 748.1937 (2 022 ) ( T ex. Healt h & Hum. Ser vs. Comm ’ n , May an adul t in car e share a bed room with a child in care?)

.

4 The longer detention periods are a consequence of Flores ’ s requirement that the facilitie s be State

- licensed because ICE is permitte d to detain minors in non

- licensed “ safe and sanitary ” facil ities for n o more t han five da ys aft er arr est , except “ in the event of an emergency or inf lux of minors into the United States. ” See Flores v. Lynch , 82 8 F.3d 898, 902

– 03 (9 th Cir. 2016)

.4

inju nction an d de claration that the FRC Rule is invalid for severa l reas ons, including that the Depa rtment lacked statutory authority to promulgate it.

The d efendants filed pleas to the jurisdiction, contending that the plai ntiffs lack standing to challenge the FR C R u le. The trial court gra nted the jurisdictional plea s in p art, dismissing the plaintiffs ’ claims under the U niform Declaratory Judgm ents Act, but denied the pleas as to the remaining grounds. The trial court also denied the defendants ’ motions for

sum mar y judgment regarding the validity of the FRC Rule . I n its final judgment, the trial court rendered summary jud gment on t he plaintiffs ’ claims fo r declar atory relief under the Administrative Procedure Act (A PA), declaring the FRC Rule invalid be cau s e it “ co ntraven es ” Section 42.002(4) of the T exas Human Reso u rces Code and “ runs counter to the general objectives of the Texas Human Resources Code. ”

The d efendants appealed, and this Court reversed the trial court ’ s determination as
to the plain tif

f s ’ standing , thu s not re aching the merits of the rule challe nge. See Grassroots Leadership , 2 018 WL 6187433 , at * 7

. The supreme court reversed our ho lding as to the standing of the detainees 5 and remanded to us for consid e ration of the issues we did no t reach.
See Gra ssroots Leadership , 646 S.W.3d at 821

. We t herefore co nsider the juri sdictional issues we did not reach and, if necessary, the re maining appellate issues

— including the merits o f th e
p lai ntiffs ’ rule challenge

.

5 The day

- c are operator and Gra ssroots Leadership did not challenge in th e s up reme cou rt this C ourt ’ s r uling as to their standing

.5 DISCUSSION Whether the det

a inees ’ claims are moot We fir st consi der app ellan t s ’ con tention , whi ch we did not reach in our prior opinion and which is encompassed with in their res pective first issue s , that because the detainees admi t tedly are no longer d etained at Karnes and D ill e y, t his dispute has become m oot

. Appellants c ite the genera l standing ru le requiring an actual controv ersy to exist between t he parties at every stage of the legal proceedings, including the appeal, and providing that if a
contr o versy ceases to exist, th e c ase becomes moot

. See Williams v. Lara , 52 S.W.3d 171, 18 4 (Tex. 2 001) ( determinin g that inmates ’ release from county jail rendered their challenge to jail conditions mo ot) ; see also Electric Reliabilit y Council of Tex

. , Inc. v . Pan da Power Generation Infrastructure Fund

, LLC , 619 S.W.3d 628, 634

– 35 (Tex. 2021) ( listing w ays t hat case may become mo ot )

. Mootness is a juris dictional issue that appellate courts must consider sua s ponte even if l itigants do not rais e it. See Stat e ex rel. Best v. Harper , 562 S.W.3d 1, 7 (Tex. 2018)

.

Appellees respond t hat the det ainees h ave b ee n paro led or release d on bond since the outset of this l awsuit, and that the ir bond or parole can be revoked at any time , with or without cause , see 8 U.S.C. § 1226(b) , and therefore their cla ims are not m oot , see In re Hutto
Fam. Det

. Ctr. , No. A

- 07

- CA

- 16 4

- SS, 2007 WL 9757682 , a t * 2 (W.D. Tex. May 10, 2 007) ( holding that because detainees “ ha [d] not been unequ i vocally released ” and had bee n given only

“ discretionary parole ” under Sectio n 12 26(b) tha t c o uld “ be revoked at an y time, even if t he detai nee do e s nothing in particular to warrant revocation , ” t h e y had “ a continuing, vital interest in the outcome of this litigation, ” and their c laim s wer e not moot ) , reconsider ation granted on othe r g r ounds , 2007 WL 975768 2, at *1 (W. D. Tex. May 29, 2 007) ; see also C lark v. Martinez , 543 U.S. 371, 376 n .3 (2005) (holding that discretionary, revocable parole release under different6

code sec tion d id not m oot detainee ’ s claims for relief); Rosales

- Garc ia v . H olland , 322 F.3d 3 86, 395

– 96 ( 6 th Cir. 2003 ) (s ame) ; Roberts v. State , 508 S.W.3d 310, 311 (Tex. App.

— Fort Worth 2013, no pet.) (noting that because in mate ’ s release from p rison was o n condition of pa ro le , he remained in custody of Department o f Criminal Justice and thus his complaint about withdraw als from his inma te trust account was not moot)

. But in the cases cited by appellees , the conditions under which the detainees had been r eleased were undis pu ted and were made k nown to the court

. See Clark , 543 U.S. at 376 n .3 ; Rosales

- Garcia , 322 F.3d at 39 5

– 96 ; In re Hut t o Fam. Det. Ctr. , 20 07 WL 9757682, at *2 ; Roberts , 508 S. W.3d at 311

.

In contrast , h ere

— as appellants argue in their briefs

— there i s no evidence explaining the circumstances or conditions, if any, of the detainees ’ release. Evidence in the record indic a tes that ab out 97% of those detained at Karn es ar e “ released into the comm unity , ” without further explanation. Other evidence indi ca tes that the majority of those detained at Dilley and Karnes are ultimately relea sed

— either to further pursue as ylum or be c ause t h e y h ave received a favora ble asyl um determination. While the parties agree that de tainees reside at
Di lley and Karnes while u nder a federal deport ation order, many of them fi le asylum claims , which are at various stages of proc essing during their d ete nti o n . As to the s pecific d etain ees who are the plaintiffs below, ap pellees merely argue in their b rief that “ [ t] hey have all s in ce been paroled or rel eased on bond , ” but they cite no evidence in the record or oth erwise supporting that claim. In cont r ast, a ppellants i dentif y undisputed e v idence in the record indicating merely that the detainee appellees are no longer residents of t he facil ities , rendering their controversy no longer li ve and thus moot by definition

. See Williams , 52 S.W.3d at 184

. W e therefore ca nnot conclude , on this record, that appellees ’ status is analogous to that of the d etainee s in In re
Hutto Fam ily Dete n t ion Center

. See 20 07 W L 9757682, a t * 2 . W e thus turn to appellees ’7

argument that even if their claim s are moot, one of t h e available exception s t o the mootness doctrine applies

.

The first exception they cite is known as the “ capable of repetition yet e vadin g review ” ex cep t i on . See Texas A&M Univ.

– Kingsville v. Yarbrough , 347 S.W.3d 289, 290 (Tex.
2011 )

. Th is “ rare ” exce p t ion applies only when ( 1) the injury is of such short duration that the plainti ff cannot obtain review before the issue becomes mo ot and (2) there is a r easonable expectation that the same action will occur again to the same plaintiff if the issue is not considered by the court s . Id. ; see also City of Los Angeles v. Lyons , 461 U.S. 95, 109 (1983) ( “ [T] he capable

- o f

- re petition doct ri ne applies only in exceptional si tuations , a n d generally only wh ere the named plaintiff can make a reaso nable showing that h e will again be subjecte d to the alleged illega lity. ” ).

We conclud e that the first prong of th is exception is met because the evid en ce establishes that the average lengt h o f detention is el even days , a period too short to complete
l itigation. See Willia m s , 52 S .W.3d at 184 ( holding that where pla i ntiff challenged conditions of pre - trial confine ment , duration of conf inement was too s ho rt to c omplete litigation and thus

sa tis f ied first prong); D iop v. ICE , 656 F.3d 221, 227 (3 r d C ir. 2011) (holding that im m igrant ’ s claim met fi rst prong).

As to t he second prong, however , and as noted above, appell ees do not c it e any evidence in the record supporting their claim that the s e same former detainees are r easonably likely to be detained a t Dilley or Karnes aga in

. Specifically, they cite no evidence c oncerning the c i rcumstances under which the detainees were released , a nd therefore we cannot

con clude tha t the re is more than a m ere physical or theoretical possibility that they will be detai ned in one of thes e two c enters

— or any cente r

— again

. See Heckman v . Will i amson8

County , 369 S.W.3d 137, 165 (Tex. 2012) (noting tha t f or “ capable of re petition except ion ” to apply, plaintiff mu st s how that “ the cl aim is capable of repetition as to him ” ) ; S t a t e v . City of
Austin , N o. 03

- 20

- 00619

- CV, 2021 WL 1313349, at *6 (Tex. App.

— Austin Apr. 8, 2021, no pet.) (mem. op.) (“The ‘mere phy sical or theoreti cal possibility’ that the same party may b e

s u bjected to the same action again is not sufficient to sat is fy this element.” (quoti n g Murphy v.
Hunt , 4 55 U.S. 478, 482 (1982) )). Appellees therefore have not demonstrated that their first cit ed mo otness exception applies

.

We next consider wh eth er appellees ’ second asserted e x ception to mootn ess applies : the p ublic

- interest e xce ption. T his Court and som e of our sister courts ha ve recognized this e xception, which e xpands the cap able

- of

- re p eti tion exception to i nclude parties other than those i nvo lve d in the current case. City of Aust in , 20 21 WL 1313349, a t * 7 ; see NextEra Energy , Inc. v. Public Util

. Comm ’ n , No. 03

- 19

- 00425

- CV, 2 020 WL 4929778, at * 4 ( T ex. App

. — Aus tin Aug. 21, 20 20, pet. denied ) (mem. op.) (re cogniz ing avai lability of exception in appropriate

c ases) ; Meeker v. Tarrant Cnty. Coll. Dist. , 317 S. W.3d 754, 761

– 62 (Tex. A pp . — Fort Worth 2010, pet. den ied) (discussing except ion s ’ “ com mon element ” ); T e xas De p ’ t of Pub. Saf

ety v. LaFleur , 32 S.W.3d 911, 914 ( Tex. App.

— Texarkana 2000, no pet.) ( r ecognizi n g exception and applying it in case involving revo cation of concealed

- handgu n permit because, even thou gh issue became moot wh en license expired , issue was of “ co nsiderab le p ublic interest ” involving

“ l arge num ber of people license d to carry guns in Texas ” ). The public

- interest exception “ allows appellat e review of a question of c onsidera ble public impo rtance if that question is capable of repetition between ei ther th e sa me p arties or other members of the publi c but for some reason evades appellate rev i ew. ” University Interscholastic League v. Buchanan , 848 S.W. 2d 298,
304 (Tex. A pp.

— Austin 1993, no wri t) ; see also Federal De posit Ins. Corp. v. Nueces County ,9

8 86 S.W .2d 7 66, 767 (Tex. 1994) (recognizing that so me courts of appeals have adopted exceptio n but not reaching issue of viability of public

- intere st e xception)

.

We conclu d e that the question of the FRC Rule ’s validity, including the detention

- ce nter condi tions and len gthen e d detention periods it permits, is one of considera ble importance to the public. For years fede ral immigration policy has b een a subject of great publi c interest and especially so beg inning in 2014 when ICE began detaining all undo c umented
f emal e - he aded families. See Flores , 212 F. Sup p.3 d at 869 ; see also Fl ores , 828 F.3d at 901 (noting that issues unde r lying appeal

— whether D illey and Karnes had violate d Flores c onsent decree

— “ t ouch on matter s of national impor tance ” )

. Evidenc e in t he record de mons trates tha t
D illey and Karnes hav e detained thou sands of immigrants, including children , with more than 5,0 0 0 new people detained at Dilley in the month of Se p tember 2016 alone. Further, t he well

being and safe ty of children , in and of itself, is an i ssue of consid era ble publi c interest, see In re A.V. , 113 S.W.3d 355, 361 (Tex. 2003) (re cognizing state ’s duty to protect safety and welfare of children); Golden Spread Coun cil, Inc. v. Akins , 926 S.W.2d 287, 291

– 9 2 (Tex. 1996) ( recogniz ing legi slature ’s stro ng policy and public interest in protecting children from abuse) , and the record contains evidence of a t le a st one child ’ s being g roped at Karnes by an unrela t ed adult with whom she was sharing a bedroom per the F RC Rule ’s ex ception s to the M inimum
Sta ndar ds

. It also co nt ains evidence of the tr auma and p sychological harm that childre n suffer from being in detent i on centers , which ha rm would presumably increase by virtue of the longer det ention periods th at li ce nsi ng of the facilities un der the FR C Rule wou ld allow.

W e have already determined that detention periods at Dilley and Karnes are generally of s u ch short duration as to ev ade appellate review of the ch a llenged conditions there , which stem from the FRC Rule , and it is reasonably f or eseeable that fut ure detain ees will10

experience the effects of the FRC Rule while detained at Dilley and Karnes. For these re a s o ns, we hold that the public

- interest exception a pplies to th e plaintiffs ’ claims, and therefore this
di s pute is not moot

. See Buchanan , 848 S.W. 2d at 304

. W e a ccordin gly turn to the mer its of appellees ’ rule challenge.

Wh ether the trial court proper l y determined that th e FRC Rule is invalid
In the i r respective second issues, appellants contend that the trial court impr operly determine d tha t th e FRC R ule is invalid when it granted appellees ’ motion for summary judgment and den ied theirs on the pla in t iffs ’ claim for d eclaratory relief under the
APA. W e review a trial court ’ s summary judgment de novo. See Trav elers Ins. v. Joachim , 315 S.W.3 d 86 0, 862 (Te x. 2010)

. W hen both parties move for summary judgment on the same is sue and the trial court gran t s one motion a nd denies the other, we consider the summary judgment evidence p resented by both sides ; determine all questions pr esented ; and, if we determi ne tha t the trial court erred, render the judgment the trial court should have rendere d

. Valence Op e rating Co. v. Dor sett , 164 S.W.3d 656, 661 (Tex. 20 0 5)

. State administr ative agencies have only those powers that t he legislature expressl y

con fers upon the m and those implied powers that are reasonably necessary to carry out their

e xpress functions or d uties. See P ubli c Util. Comm ’ n v. City Pub. Serv. B d. , 53 S.W.3d 310,
31 5 (Tex. 2001) . Absent specific or i mplied s tatutor y authority, a n agenc y ru le is inv alid. Id. Furthermore, an agency may not exercise what is effectively a new power based on a cl a im t hat the e xerc ise is expedient for administrative pu rposes. Id. To e stablish a rule ’ s fac ial invalidity, a chall enger must show that th e rule (1) cont rav enes specific statutory langua ge ; (2) is counter to the statute ’ s general obj ectives ; or (3) impo s es additional bur dens, conditions, or restrictions i n11

e xcess of or incons is tent with the relevant statutory provision s. Texas Ass ’ n of Acu p unctur e &
Orien tal Med. v. Texas B d. of Chiropractic Exam ’ rs , 524 S .W.3d 734, 739 (Tex. App.

— Au stin 2017, no pet. ) ; see also Tex. Gov ’ t Code § 2001.038(a) ( authorizing “ validity or applicability of a rule ” to be “ dete rmined in an action for declaratory ju dgm ent if i t is alleged that the rule or its threatened application interferes with or impairs, or t h reaten s to interfere with or impa ir, a legal right or privilege of t h e plaintiff ” )

. Determining the validity of a rule requires us to construe the statu tor y lan guag e from which the agency ’ s aut hor ity p urportedly flows

. Tex as Orthopaedic Ass ’ n v. Tex as 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 giv e e ffect to t h e l egislature ’ s intent. Liberty
Mut. Ins

. v. Adcock , 412 S.W.3d 492, 494 (Tex. 2013)

. “The ‘surest guide to what lawma kers intended’ is t he enacted languag e of a statute.” Y oungkin v. Hines , 546 S.W.3d 675, 680 (Tex. 2018) (quoting Entergy Gu lf Sta tes, Inc. v. Summers , 282 S.W.3d 433, 463 (Tex. 2009) ). W e defer to the agency ’ s construction of a st atute “only when the st atutory language i s ambiguous.”
S outh w est Royalties, Inc. v. Hegar , 500 S.W.3d 400, 405 (Tex. 2016 )

. If the statute is

u nam biguous , ag ency deference “has no place.” TracFone Wireless, Inc. v. Comm issio n on State
Emer gency Commc ’ ns , 397 S.W.3d 173, 182 ( Tex. 2013)

. The d e tainees raised sev e ral grounds for invali dating the FRC Rul e in their motion for summary judgment: (1) the Depar tmen t lacks impli ed statutory authority to issue GRO licenses to Dilley and Karnes and regulate them because they a re not GROs , due to the fact that pa rents resid e in the facilities with their children ; (2) Texas Family Code Section 54.011(f)
pro hibits the Dep a rtment from assisting Dilley a nd Karnes in prolonging detention of immigrant children in sec ure facilities , see Tex. Fam. Code § 54.011(f) ; (3) the FRC Rule i s not in harmony12

with the general objectives of Chapter 42 of the Texas Human Re s ou rces Code; and (4) the Departmen t adopted the FRC Rule without convening the required statutory “ work group , ” see Tex. Hu m. Res. Co de § 42.042(i)

.

In its final judgment, t he trial court granted the detainees ’ mot ion for summary judgment as to their cla im for decla rat o ry relief under the APA and d et ermined that “ [t]he FRC Rule contrave nes T ex. H u m. Res. Code § 42.002(4) and run s co unter to the general o b je ctives of the Texa s Human Resources Code and is, therefore, invalid. ” Appellants challenge th e t ria l
court ’ s su mmar y determination , ass e rting

— as they di d in their mo ti on for summary judgment

— that (1) Chapter 4 2 of the Human Res our ces Code provides “ amp l e statutor y authorit y ” for the
D epartment to have promulgated the FRC Rule, (2) the FRC Rule was ad opt ed in substa ntia l compliance with th e applicable procedural requir ements, (3) and Secti on 54.011 o f the Family Code does not app ly to the circu mstances h e re .

We agree with t he detainees ’ argument , w hich th ey made in their summary

judgment motion, tha t t he Department lac ks the express or i mplied statutory autho rity to license the Dilley and Kar nes facilities

— and reg ulate them a s chi ld

- care faciliti es , i n c luding by promulgatin g t he FRC Rule

— becau se t he childre n reside in the fac i lit ies wi th the ir parent s a nd the facili t ie s are therefore neit her “ child

- care facilities ” n or GROs. Cf. Tex. H u m. Res. Code § 42 .002(3) , (4) (defining “ c hil d

- care fac ility ” and G R O , r espectively ). Ap p ellees allege that for over ten years, until the Flores decision and ICE ’ s ne w i mmigration po licy , the Department
ag reed that Chapter 42 does not authorize it to license or regulate facilities such as Dilley and Karnes, where childre n reside with their pa r ents. Among other evidence in the re cord, they cite fo rmer Department Commis sio ner John J. S peci a ’ s statement in May 2015

— in response to a request that the agency shut down Dilley

— that “ children reside at this facility with their parent s.13

It is for this r eason that DFPS has n either jurisdiction nor standing. ” Appel lees allege th at th e Department did an “ about

- face ” just a few months late r, after the Flores decision, when Dilley , Karnes, and ICE “ ag gres sively s ought ” child

- care li c enses and the Department short ly thereafter
pro mulgated the FR C Rule

. While we note the alleged chan ge i n the Depa rtm ent ’ s construction

o f Chapter 42 con cerning its authority there under , we give that c onstr uction no deference unless w e find the relevant s tatutes am biguous, which we do not. Se e S outhwest Royalties , 500 S.W.3d at 405

.

I n Chapter 42 of t he H um an R e source s Co de (entitled “ Re gulat ion of Certain Facilities, Homes, and Agencies that Provide Child

- Care Services ” ) , the term “ child

- care f ac ility ” means

a facility licens e d, certif ied, or regist e red by the departm ent to provide asse ssment, care, t rain ing, educatio n, c usto dy, treatmen t, o r supervision for a child who is not related by blood, marria ge, or adoption to the own er or operator of t he faci l ity, fo r all or part of t he 24

- hour day, w hether or not the facilit y is operated for profit or charge s fo r the service s it offers.

Tex. Hu m. Res. Code § 42.00 2 (3)

. A GRO is a “ child

- care facility that provides care for seven

o r more c hildr en for 24 hou rs a day, including facilit i es kno wn as residential treatment c enters and e m ergency she lters. ” Id. § 42.002 ( 4)

. A GRO i s, t hus, a subset of a chi ld

- care facilit y. The Department contends that Dilley a nd Karnes are GROs b ecause they pro vide twenty

- four

- hour

“ care ”

— including fo od a n d she lter

— for seven or mo re children , meeting the definition in Section 42.002(4) , a nd t hat t he F RC Rule de sig nating Dill ey and Karnes as GROs and regulating them as such is therefore expressly authorized by st atute

. 6 See 26 Tex. Admin

. C od e § 748.7 (b)

6 While the FRC Rul e d oes not expressly identify Dilley and Karnes, it def ines FRCs a s center s ( 1 ) operated by or under con tra c t with ICE to enforce federal immi gration laws (2) at which each child detai ned is w ith a parent or o ther a dult family member wh o r emains with14

( p ro viding that FRC s are GR Os). The Department ’ s argument continues: because GROs a re chi ld

- ca re f

acilities , they are subj ect to the child

- care licens ing requirements and regulations in Sub chapter C of Chapter 4 2 of the Human Resources Code , and the Depart m ent has the implied auth o rity to promulgate r ules re gulating them. See generally Tex. Hu m. R es. Code §§ 42.041

– .068 (Sub chap ter C, entitled “ R egu lation of Certain Facil ities, Hom es, and Agencies ” ) ; see also id

. § 42.041 ( providing that “ [ n ] o person may o p erate a child

- care faci lity

. . . withou t a li cense issued by the [D]epartment ” and listing s ever al facilities exempt from licensing require ment s)

. We disagree , as explained be low and consider ing Subchapter C in the conte xt of the entire ty of Ch apter 42

. We first note that neither “ car e ” nor “ child care ” is defined in Chapter 42. When

a statute use s a word that it does not define, our ta sk is to determine and apply the wo rd ’ s common, ordinary meaning. J aster v. Comet I

I Constr., I

n c . , 438 S.W.3d 556, 5 6 3 (T ex. 2014)

. In determining th e common, ordinary meaning of a term, we may look to a “wide vari ety of sources, including dictionary defi ni tions, treatises and commentari es, our own prior constructions o f the word in other contexts, the use and definit ion of the word in other statutes

a n d ordinances, and the use of the words in our rules of evide nce and procedure.” Id. We must
constr ue th e term in the context of th e sta t ute in which it appears , analyzin g the r easonableness of the term ’ s differen t mean ing s, bearing in mind that the “ wor d s ’ meanings cannot be

the c hil d and provides “ the direct care ” for the child excep t for “ spe cific circumstances ” when the child is care d for directly by the center or an other adult in the custody of the center. 26 Tex. Admin . Cod e § 748 .7( a )

. The rule does not explain what would c ons titute “ specific circums tances , ” b ut evidence in the record in dicates that it might include period ic pare n tal hospitalization or illness (w hich has occurred only six times in the sev eral yea rs of the centers ’ oper ation ). It is undisputed that Dilley and K arnes are the only facilities in Texas meeting th e FRC Rule ’ s definition of “ family residential cente r . ”15

determined in isolation but must be dr awn from the context in which they are u sed. ” T GS

NOPEC Geophysical Co. v. Co mbs , 340 S.W.3d 432, 439 (Tex. 20 11)

.

One r eputabl e dictionary defines the noun “ ca re, ” in the context of c hildren, as

“ charg e ” and “ supervision, ” i.e., “ responsibility for or atte ntion to health, well

- being, and s afety , ”

see Care , Merriam

- Webster Online Dictionar y ( www.me rriam

- webster. com/dictionary/care ) (last vi sited February 1, 20 23 ) , and the no un “ child care , ” re levantly here, as “ the care of children espe cial ly as a ser vice while parents are working , ” s ee Child care , Merriam

- Webster Online Dictionary (www.me rriam

- webster.com/dicti onary/c hildcare ) (last vi sited February 1,
2023 ). Th e statute spec i fie s that a “ child

- care facility ” is a fac ilit y that provides certain services (including “ care ” ) to a ch ild “ who is not relat ed by blood, marriage, or adoption to the [facility ’ s]

owner or operator, ” see Tex. Hu m. Res. Code § 42.002(3) , im plying that the “ care ” of children

co ntemplated to occur in s uch facilities is in the absence of a child ’ s parents
. Thi s defin ition and the r elevant , common, and ordinary mean ings of “ care ” and “ child c are ” lead to the only

reas onable conclusion that th e legislature gran t ed the Department express and implied au thor it y to regulate and license facilities that are charged with the r esponsi bility f or a child ’ s health, safety, and we ll

- being in lieu of a pare nt ’ s usual responsibility therefor

— that is, du ring a parent ’ s absence

. T hus, the FRC Rule that first defin es a n FRC as a center at which a chi ld is “ detained with a pa rent o r other adult family member, who remains with the child ” and who “ provides the dir ect care for the child , ” 26 T ex. Admin. Code § 748

. 7( a) (emphasis ad d ed ), but then classifies such a center a s a GRO (i.e., a type of child

- care facility that is charged with t wenty

- four

- hour re sponsibility for children ’ s health, safety, and well

- being ) ex ceeds the legislature ’ s gra nt to the Department of li censing authori t y o ver “ child

- care facilities

. ” Because
par e nts reside at the FRCs with their children , the FRCs are not GROs.16 This con struction is compelled by S ubchapter G o f Chapter 42 , entitled

“ Regula tion of Temporary Shelter D ay - Care F a cilities

. ” Su bchapter G d ef ines a nother category of facilit y : a “ s helt er, ” me aning

a supervised publ icly or privately op erated shelter or other facility th at is de signed to provide temporar y living accommodatio ns to individuals and familie s, includi n g a fami ly vi ol ence she lter, a h omeless she lter, an d an em ergency she lt er. The term does not include a te mpor ary facility est ablished in response to a natural o r other disa ster.

T ex. Hum . Res. Code § 42.201( 1 )

. FRC s (i.e., Dilley and Karnes ) indisputably meet th is def in i tion of “ shelter ”

— they are supervise d, privately operat ed, and designed to p rovide temporary living a ccom modations to undocum ented families engaged in deportation proceedings

. Sh ou ld a “ shelter ” wis h to provide “ shelter car e ”

— defined in Section 42.201 as

“ child care that i s prov ided . . . whi le [the child ’ s b lood

- related adult o r managing co nservator] is

awa y fr om the s helte r, ” among other requirements

— it mus t eit her (a) obt ain a te mporary s helter
pe rmit ( TSP) from the D epartment or (b ) be licensed unde r S ubchapter C (i.e., as a ch ild

- care facility ). See id. § § 4 2. 20 1( 2) , . 202(a), (b). A sh elter that holds a TSP “ is not required to hold a license un der Sub chap ter C to operate a shelter day

- care faci lity

. ” 7 Id. § 42.202(c)

. But a

“ shelter day

- care fac il ity

. . . is no t a child

- care facility , as def ined by Se ctio n 42.0 02 , a nd the
pr ovisions of this c ha pter and the de partment ’ s rules that app ly to a child

- c are facility licensed under Subchapter C do n ot apply to a shelter day

- care facility. ” Id. § 4 2 .20 7 (emp hasis added) ;

se e also id. § 42.201(3) (definin g “ sh elte r day

- care facility ” as “ a shelter that provi des she lter care for not more than 24 hour s a day , but at le ast four hours a day, three or mor e days a week ” )

. F urthermore , a s helter need not obtain e ither a TSP or a S ubchapte r C license if it provides

7 It is undisputed th at Dilley and Karnes h ol d TSPs

. The De partment issued D ill ey a TS P on May 22, 2 0 15, an d it issued one to Karnes on Augu st 4, 2 015

.17

she l ter care for : less t h an four hours a day or three days a week or six or fewer children. 8
See id. § 42. 2 02(e)

. Because Subchapter G ex pressly excludes shelter day

- care fa c ili ties fro m the definitio n of Sub chapte r C “ c hild

- care f aci lities, ” it follows that the D epar tment is ex pressly prohibited f

rom requ i ring shel ter day

- care f acilities to b e lic ensed or adhere to licensing

re gulations that appl y only to child

- care faciliti es .

T h e Department attemp ts to distinguish Subchapter G by arguing that Dilley and
Karn es do not p r ovide any “ shelter care ” because

— ap art fr om the occasional hospitalizations of parents offsite

— any child care provided at the facilities happens while parent s remain onsite but are u n a vailable to directly care for the ir children themselves, suc h as when th ey atten d meetings with their lawyers. Cf. id. § 42.201(2) (defining shelter care). But t his argument ignores th e sta tutory text and context . First , as already explained above, Su bc hapter C applies only to “ child

- care facilities, ” which do n ot include f acilities where chi ldren reside w ith their parents. Secondly, b ecause shelters need not obtain either a TSP or a Su b chapter C license i f they provide only very limited “ shelter care ”

— th at is , chi ld care for less tha n four hours a day or th ree days a week o r for six or fewer children , see id

. — it follows that shelters that do no t provide
any shelter ca re at all (i.e., sh elters tha t provide child care only w hile parents are onsite) need n ot ob tain ei ther a TSP or a Subchapter C license (becaus e “ s helter care ” t hat is provided f or zero children or for zero hours or da ys per week necessarily fits into the “ less than ” c ategory in the d efi nition ). Construing Su b chapter G as the Department p ro poses would result in no licensing requirement for shelt ers providing chil d care while a resident parent is offsite yet r equiring

8 The record shows that some mothers at Dilley and Karnes r equire child care during brief perio ds w hen they are attending legal a ppoi ntmen ts or other br ief mee tings on site , and whi le it s hows t hat th ere h ave be en a few times when mother s have be en hosp italized briefly off site, there is n o evidence (or allegation) t hat child care has been needed or provi d ed for m ore than s ix children at a time

. Cf. Tex. Hu m. R es. Code § 42.201 (3 )

.18

licens ing while a resident pa rent is onsite

— an unreasonable const ruc tion that is unsupp o rted by the statutory text.

Finall y , our constr uction aligns with a Subchapter C exemption f rom licen sing requirement s f

or f acilities that are operated in connection with an “ establishment where children are cared for during short p eriods while parent s . . . are . . . eng aging in other act iv ities

. . . on or near the premises , that doe s not adver tise as a child

- care faci lity or day

- care center, and that informs parents that it is not lice nsed by the state. ” See id. § 42.041(b)(3 ) (e mp has is added )

. T h e only reasonable cons truction of t he ci te d statutes in Subchapters C and G , reading them as

a who le a nd in the context o f the entire chapter , is that the l eg isla ture ’ s express and implied delegation of authority to the Department to re gulate and license f acilities does not encompass facilities su ch as FRCs at which parents reside w ith their children.

W e h old t hat the Dep artment la cks the statutory aut hority to require the Dilley and Karnes facilities to obtain GR O (or othe r Subchapte r C ) lice nses a n d, accordingl y, lacks the
sta tutory authority t o promul gate rules regulating the m as GROs or other chil d

- c a re faci li ties.
Th e FRC Rule is thus invalid , and the trial court d id not err in invalidating the rule under the
AP A. 9 See Railroad C omm ’ n v. ARCO O il & Gas Co. , 876 S.W.2d 473, 477 (T ex. App.

— A us tin 1994, writ denied) ( “ An agenc y rule is inv alid if (1) t he agenc y had no s ta t utor y authority
to promulgate it ; (2) it was no t pr omulgated pursuant to proper procedure; or (3) it is unconstit utional

. ” )

. W e overrule appellants ’ s econd issue.

9 A ltho u gh the trial cour t expl ain ed its reason for invalidating the rule slightly differently

— that it “ contravenes Tex. Hu m. Res. Code § 42.002(4) and runs counter to t he general objectives of the Texa s Human R es ources Code ”

— we non etheless affirm its holdi ng tha t the rule is inva lid un der the APA bec ause appellate courts may consider all grounds for summary judgment that a movant ha s preserved for review and necessary f o r disposition of the appeal, even if the t rial court did not expressly rule on the groun d s . S e e Cincinnati Life Ins. v. Cates , 927 S.W.2d 623, 626 (Tex. 1996)

.19

A ppell ant GE O G

roup ’ s third issue App ell ant GEO Group, I n c.

— t he oper a tor of Dilley

— ra ise s an issue ( its third) that neither th e Department nor the Corrections Corporation of America (the operator of Ka rn es) rais e s , c o ntending that the plai ntiffs are estopped from br inging their APA c hallenge to the FRC Rule

. G EO ar gues that because the pla intiffs are putative members of the Flores class, in which proceeding they took the position

— and from which they be nefited p er th e con sent decree

— that undocumented minors must be p laced in a p rogram that is “ licensed by an app ropri ate State agency to provi de residential, group, or foster care services for dependent children , ” see Flores , 212 F. Supp. 3 d at 8 77 , they can not now assert the “ inconsisten t ” position in this lawsuit of

a tt acking the FRC Rule. See Pleasant Glad e Assem bly o f God v. Schub ert , 264 S.W.3d 1, 6 (Tex. 2008 ) ( “ The doctrine of judicial estoppel ‘ precludes a party from adopting a position inco nsistent with one that is m aintained successfully in an earlier proceedi ng . ’ ” (citation omitted) ); Lopez v. Munoz, H ocke ma & Reed, L.L.P. , 22 S.W.3d 857 , 864 (Tex. 2000) ( “ Qu asi

estoppel precludes a party from asserting, to another ’ s disadvantage, a right incons i stent with a posi tion pr eviously ta ken ” and “ applies when it woul d be u ncon sciona ble to allow a person to maintain a position in consistent with one to which he acquiesced, or from which he a ccepted

a benefit. ” ); Bexar Metro. Water Dist. v. City of San An t onio , 228 S.W.3d 887, 89 5

– 96 (T ex. A pp.

— Austin 2007, no pet.) ( “ A party that benefits fro m a po sition that it has taken in a cons ent decree is

. . . estopped from later asserting an inconsis tent position. ” ).

How ever, as appellees respond in their b r ief , appellees ’ l itigation positions are not incon sistent because the F lores consent decree ca nnot r easonably be construed as acquies cence in the promulgation of a rule that is inval id because it ex ceeds an agency ’ s statutory authority and contravenes leg isla tive intent

. While the class members in Flores expressly agreed to be20

pla ced in a “ license d prog ram, ” it must be presumed that such co ntemplated licensing is authorized by and in compliance with applica ble state laws. Cf. C ayan v. Cayan , 38 S.W.3d 161,
1 66 n.8 (Tex. App.

— Houston [14 th Dist.] 2000, pet. deni ed ) ( “ [A] cou r t cann ot construe a
sta tute o r a contract to impose or enforce an illegal obligation or otherwise compel an ill egal
act because the purpose of the legal system i s to combat unlawfulness, n ot pr omote it. ” ). We

conc lude that appellees are not estopped from raisin g their APA claim and a ccordingly overrule
GEO ’ s thir d issue.

W hether the trial court prope rly issue d in junctive relief
A few days a fter the trial court signed its De cem ber 2 , 201 6 F inal J udgment, the pla intiffs file d a n “ Emergency Mo tion to Prev e nt Aut omatic Su spension of Ju dgment on Appeal
P e nding A Decision on the Terms of any Supersedeas. ” In the moti on, the plaintif fs stated that

“ [w]hile Pl aintiffs prefer that the C our t not authorize any suspension of its judgment, the Court may wis h to imp o se ter ms that are subst anti ve ly identical to the terms st ated in thi s Court ’ s temporary injunction iss ued June 3, 2016. ” 10 A he aring on the motion was he ld December 5 , at which th e d efend a nts “ notified the Court of their intent t o (1) perfect an appeal and au tom atically supersed e t he Court ’ s Final Judgment; (2) issue a li cense under the FRC Rule to . . . [Dilley]; and (3) give ful l force and effect to the license previously issued un der t he FRC Rule to

. . . [Karnes]

. ” On Decemb er 16 t he trial co urt signed it s A mended Final Judg men t, “ [a]fter reviewing Plaintif

f ’ s Motion to Prevent

. ” T he Amended Fi nal Judgment vac ated the Decembe r 2

10 The t emporary in

junction

— which was set to expire “ n o later than the date that this Court issues its decision after a final trial on the merits ”

— enjoined the Department f rom issuing an FRC li cense to Dilley (it h ad already issued a license to Karnes) and ordered the Department to “ continue to investi gate an d report any allegations of abuse or n eglect, standards deficiencies , or violatio n of rule of law ” at Dilley and Karnes

.21

Final Judgment a nd substituted in its place a n amended ju d gment with the same substantive provisions except for the addition of a s ection ent itled “ Inju nc tive Relief and Denial of
Automa tic S upersedeas

. ”

That new section of th e Amende d Fin al Judg ment contains the t ria l cou rt ’ s finding that “ allowing Defendants to automatically supe rsede the Court ’ s rulin g that the
FR C Rule is inv ali d wou ld render th e reli ef granted by this A mende d F inal Jud gment ineffective and Plaintiffs would su ffer immin ent and irr eparable harm ” unl ess t he “ status quo ” w as preserved during t he pe nden cy of the appe al

. To preserve the statu s quo, t he Amended Fina l Judgment provid ed ,
Def e ndants

. . . are ORDERED to refra in from issuing licenses under the FRC R ule u ntil t he Co urt o f Appeals issues a decis ion on appeal or further Order of the Cour t. Defe ndant s . . . are FURTHER ORDERED to continue to inv es tigate and re port any al legati ons o f abuse or n eglect, standards defi ciencies, or violation(s) of rule of law at K arnes and D illey during the pend enc y of any appeal of this Court ’s ruling.

In th ei r final issue, a ppellan ts argue that it was improper for the tria l cour t t o i ssue the l atter of the above orders

— which they co ntend effectively constitut e s a perm anent in j uncti on

— and to require th e De par tment to reg ulate the facilities during penden c y of the appeal be cause plaintiffs did not specificall y plead for that re lie f

. See Shi elds v

. Sta t e , 27 S.W.3d 267, 271 (Tex. App.

— Austin 2000, no pet.) ( “ Perso ns seeking a perma nent injunctio n must b e
sp ecif ic in pl eading the relief sought . . . . ” ); Ga use v. Gause , 430 S.W. 2d 409, 413 (T e x. App.

— Austin 1968, n o writ) (not in g th at permanen t inju nctio n must be sought in special prayer ). Moreover, appell ants contend, this portion o f the Amended Fi nal Judgment “ runs contrary to [the22

trial court ’ s] own dete rmination that the Department lacks statutory authority to adopt [ the FR C Rule ]

. ” We agree wit h this latter contention

.

W e have determined that the Department lacks sta tutory aut hority to issue child care licenses to Dilley and Karnes and regulate them as GROs

. The trial court ’ s Amended Final J udgment proh ibited the defend ants f rom su p ersed ing t he jud gment while on appeal , and a ppellants do not app eal this ruling. See Tex. R. App. P. 24.2(c) (providing supersedeas procedures for non - money and non

- prope rty judgments). Because the trial court ’ s judgment was not sup erseded, it is effect ive during the p e ndency of any appeals , and the trial court has an affirmative duty to enforce it

. See Tex. R. Civ. P. 308

. However, because the FR C Rule is invalid and t he D epartment has no a uthority to license FRCs or apply licensing requir ements to th em, includi ng th e Minimum Standards, 11 we hold that the portion of the trial court ’ s Amended Final Judgment ordering the Department to provide “ regula r and comprehensive ove rsight ” of Dilley and Karnes, including its specific order that the Depa rtment “ cont inue to inv estig a te and report any allegations of abuse or neglect, standards deficienc ies, or violation ( s) of rule of law at Karnes and Dilley durin g the pendency of any a p peal , ” cannot stand because it conflicts directly with the trial court ’ s ju dg ment on the merit s of t he plaintiffs ’ rule challenge

. 12 We sustain appell ants ’ final issue.

11 While C hapter 42 re quires t he H ealth and Huma n Services Commission to adopt by rule “ minimum standards ” that , among other objectives, “ pr omote the health, safety, and wel fare of children ” attending ch ild

- care facili ties, the Human Res ources Code delegates to the agency the discretio n to delin eate the specifics of such standards. See Tex. Hu m. Res. Code § 42.042

.

12 Appellants do not take issue with the portion of the tr i al court ’ s judgment that enjoins the Department fr om issuing licenses under the FRC Rule , and the Depa rtment does not c hall en ge the tria l court ’ s de nial of its right to autom a tically supersede the judgment. See Tex. R. Ap p. P. 24.2(a) (3)

. A ppellant GEO ad ditionally argues that th e “ injunctive ” por tion of the Amended Final Judgment v iolat e s appell ant s ’ ri ghts to d ue proce ss b e c ause ap pellees ’ “ Motion23 C ONCLUS ION We reverse and vacate the portion of the Amended Final Judg men t grantin g inj unctive relief ordering th e Department to “ continue to inv estigate an d repo rt any allegation s of a buse or neglect, standards deficiencies, or violation(s) o f 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 , Justic e B efore J ustices Baker , Kelly, an d Smith
A ffirmed in Part ; Reversed and Vacated in Par t on Remand Filed: February 10 , 2023

to Preve nt Automatic Su spensio n of Judgment P e ndin g Appeal ” did no t provide adequate notice a bout the issu es to be considered at the hearing, which effec tively was an “ unnoticed hea ring ” on an “ unfiled motio n to modify the De c e mb er 2 Final Judg ment ” and an “ unfile d motion for reconside ration. ” We need not address th is a rgument of GEO because of our holdin g th at the trial court improperly issued injunctive relief

.