Texas appeals border barrier lawsuit to Fifth Circuit

A federal judge in the border town of Del Rio ruled against Texas in its border barrier lawsuit against the Biden administration.

Chief U.S. District Judge Alia Moses, presiding over the case in the Western District of Texas Del Rio Division, denied the state’s request for a preliminary injunction order and stay, after previously granting the request.

Moses ruled Wednesday that evidence presented by Attorney General Ken Paxton and the Texas Public Policy Foundation did not meet the burden of proof required by law.

“Based on the evidence presented at the November 7, 2023 hearing the documents submitted thereafter, the Court finds that there is insufficient evidence at this juncture to support a substantial likelihood of success on the Plaintiff’s ultra vires claim,” Moses wrote in her 34-page order.

She wrote that “to prevail on its ultra vires claim, the plaintiff must show that an agency had ‘no colorable basis’ for the challenged actions. … This standard sets a high bar for plaintiffs bringing ultra vires claims. … plaintiffs bringing ultra vires claims face a higher burden than they do for traditional APA claims.”

Texas requested the court preliminarily prevent the federal government from cutting, destroying, damaging, or interfering with Texas’s concertina wire border barriers until the trial, which has yet to be scheduled.

Last month, Texas and TPPF sued the Biden administration after Border Patrol agents began bulldozing concertina wire barriers on Texas soil to allow foreign nationals to illegally enter Texas between ports of entry. Moses initially granted Texas’ request and issued a temporary restraining order, blocking the federal government from destroying Texas’ concertina barriers.

Texas sued after Eagle Pass officials declared a state of emergency in response to thousands of foreign nationals illegally entering Texas from Mexico in a few days, creating a public health and safety crisis. In response, Abbott surged Operation Lone Star border security resources to block illegal entry, including expanding installation of concertina wire barriers.

Eagle Pass is still under an emergency situation, with the federal government recently shutting down one of its international bridges.

Moses’ ruling will allow the Biden administration to resume its policy of destroying Texas’s concertina wire.

In her ruling, Moses described Border Patrol agents cutting Texas concertina wire barriers as “the problem appears unique to the Del Rio sector.” However, she also stated the wire was cut in “exigent circumstances in the El Paso and Rio Grande Valley Sectors.”

The Center Square has previously reported on the concertina wire barriers being cut by Border Patrol agents in Brownsville and El Paso areas, located in the two sectors the judge mentions.

She also pointed to testimony of Border Patrol agents who said “that in both cases, agents have discretion to assess the situation and exercise their judgment whether to cut the wire.” The judge also noted: “The parties agree that medical emergencies justify cutting or moving the plaintiff’s fence.”

The Center Square previously reported that Texas Department of Public Safety implemented a policy in July to cut the concertina wire barriers in medical emergencies. An email from DOS Commander Steve McCraw says, “As we enforce state law, we may need to open the wire to aid individuals in medical distress, maintain the peace, and/or make an arrest of criminal trespass, criminal mischief, acts of violence, or other state crimes.”

Current policy dictates that DPS troopers and Texas Military Department soldiers monitor illegal border crossers in distress, including providing "appropriate medical attention when needed."

The state has appealed Moses’ ruling to the U.S. Court of Appeals for the Fifth Circuit.