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., Appellants

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 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

O P I N I O N

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.
2

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 Department2licensing 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.
3

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 periods4at 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).
4

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 detainees5and 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.
5

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 
6

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’
7

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 
8

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, 
9

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 wellbeing 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 
10

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 summaryjudgment 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
11

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 
12

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 summaryjudgment 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. 
13

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 
14

(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.”
15

determined in isolation but must be drawn from the context in which they are used.” TGSNOPEC 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.
16

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.
17

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).
18

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).
19

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) (“Quasiestoppel 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 
20

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.
21

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 
22

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 
23

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.