Although we don’t generally report on immigration-related issues, a per curiam opinion handed down last week caught our attention. In Grassroots Leadership, Inc., et al. v. Texas Department of Family Protective Services, et al. (19-0092), plaintiffs, which include a non-profit advocacy group, several detainee mothers (individually and on behalf of their minor children), and a day-care operator sued the Department of Family Protective Services (TDFPS) following the sexual assault of a minor who shared a room in a detention facility with an unrelated adult. The plaintiffs allege that a rule change that allowed the Dilley and Karnes family residential centers that lifted a limitation on minors sharing bedrooms with unrelated adults caused the assault. The plaintiffs sought a permanent injunction and declaratory judgment that the TDFPS lacked authority to adopt the rule because it raised the safety risk to detainees and their children. TDFPS and the private prison company that operates the centers filed pleas to the jurisdiction arguing that the plaintiffs lacked standing to sue. The trial court ruled that the rule violated the Texas Human Resources Code and declared it invalid. The Austin Court of Appeals reversed (with an en banc court denying reconsideration over three dissents), holding that the plaintiffs lacked standing because “their alleged injuries were not traceable to the adoption of” the rule.
Without hearing oral argument, SCOTX granted the petition for review and reversed the court of appeals’ decision. The opinion is significant to us for its discussion of constitutional standing and its holding that the mothers and children had standing to sue the state under these facts. The Court’s analysis begins with a citation to Heckman v. Williamson County, 369 S.W.3d 137, 154-55 (Tex. 2012) for the proposition that “plaintiffs have standing to sue when they allege a concrete personal injury traceable to the defendant’s conduct, and the relief requested is likely to redress that injury” (noting that Texas’s standing requirements parallel federal standing doctrine). Turning to the text of the disputed rule, the Court disagreed with the court of appeals’ interpretation of the rule to disallow unrelated adults from sharing a bedroom with a minor child. To the contrary, the rule allows such an arrangement as long as it enables families to remain together in the same residence.
The question thus becomes whether the plaintiffs’ alleged injuries are “fairly traceable” to the defendants under Heckman and apposite U.S. Supreme Court authority. Applying Bennett v. Spear, 520 U.S. 154, 169-70 (1997), the Court noted that “traceability does not require a defendant’s action to be the sole cause of the harm,” only that the injury “be traceable to an action by the defendant when the defendant ‘by determinative or coercive effect upon the action of someone else’ caused the injury to the plaintiff.” TDFPS’s rule has a “coercive or determinative effect” on the Karnes and Dilley facilities because they could not maintain licensure (and could not continue to house detainee families) without complying with it. Plaintiffs thus established the element of “traceability.”
Because the court of appeals held that the plaintiffs’ injuries were not traceable to TDFPS’s action, it did not reach the other elements of the standing doctrine. Again citing Heckman’s requirement of a “concrete injury,” the Court elaborated that the alleged injury must be “‘threatened or actual’—not hypothetical” (citing Farmers Tex. Cnty. Mut. Ins. Co. v. Beasley, 598 S.W.3d 237, 241 (Tex. 2020)). If the plaintiff seeks injunctive relief, as here, the concrete injury requirement may be satisfied if the plaintiff can show a “substantial risk . . . based on a reasonable inference from specifically alleged current facts” [citations to SCOTUS authority omitted]. Here plaintiffs alleged at least one incident of sexual assault by an unrelated adult and argued that the rule increased the risk of additional harm, both from physical assault and invasion of privacy. [The Court noted that it has recognized invasion of privacy as a personal injury, citing Crosstex N. Tex. Pipeline, L.P. v. Gardiner, 505 S.W.3d 580, 594 (Tex. 2016).] Consequently, plaintiffs met the burden of alleging “actual and impending harm of a legal protected interest,” satisfying the concrete injury requirement for constitutional standing. Having found a concrete injury, the Court had no difficulty finding that the relief sought by the plaintiffs—an injunction blocking enforcement of the rule—would redress the injury. The Court sent the case back to the court of appeals for consideration of the remaining jurisdictional issues and, if necessary, of the merits.
In light of a political trend toward expanding private causes of action involving, in our view, dubious “concrete injuries,” anything SCOTX has to say about constitutional standing is significant. If the legislature continues to take this approach—and there is very good reason to believe that it will—SCOTX is likely at some point to have to consider if the legislature has unfettered authority to confer standing by statute or, if it doesn’t, what the limits might be. As we have said before and will say again, the business of our courts is to resolve real disputes between real people with real injuries. Once we ask them to get involved in contentious policy issues by way of private lawsuits, the already worrisome tendency of the public to view our courts as servants of partisan political interests will eventually destroy any confidence in the impartiality and independence of the judiciary. If that ever occurs, the signal achievement of a republican form of government will be gone for good, as well as all of the economic and social benefits we derive from it.
