Last month, the leader of a small Texas state commission 鈥� tasked with aiding criminal defense for low-income Texans 鈥� received an unusual request from top officials working with the Trump administration.
The U.S. Department of Justice needed their help providing legal services to immigrant children in their deportation cases, said Scott Ehlers, the executive director of the state鈥檚 Indigent Defense Commission.
The first call to Ehlers came from high-ranking lieutenants with Texas Attorney General . Then , the DOJ鈥檚 chief administrative hearing officer, who briefly preceded Pam Bondi as acting U.S. attorney general, reached out, Ehlers confirmed to The Texas Tribune.
The calls raised eyebrows from across the Texas agency, not just because of where they came from, but because the extraordinary request by the Trump administration was well outside of the commission鈥檚 experience and scope.
Ehlers told the officials that he did not believe that immigration defense for children was legal under his organization鈥檚 mandate, which the state Legislature created explicitly for criminal defense more than a decade ago.
A Justice Department spokesperson, who declined to be named, confirmed that officials with the federal Office of Refugee Resettlement, tasked with the care of immigrant children, asked for the Texas Attorney General鈥檚 office assistance in representing immigrant children, 鈥渉owever, they believed they could not do so, which is why they recommended the Texas Indigent Defense Commission to take on the project.鈥�
The DOJ, the spokesperson said, 鈥渨as asked to look into the legality鈥� of contracting with the Texas commission. Federal money would be funneled to Texas from ORR, but that agency did not respond to further questions about a proposed contract.
The request comes as the Trump administration seeks to end protections for immigrant children on multiple fronts, including threatening to terminate the existing federally-mandated contract for legal assistance to minors facing deportation. A temporary contract with the longstanding legal services provider, the Acacia Center for Justice, a national nonprofit, is set to end this month. At the same time, the government has abruptly at least 50 federal shelters detaining immigrant children across Democratic states such as New York, Illinois and Michigan even as federal contractors in Texas hundreds of shelter jobs. Lawyers and advocates say that indicates that they may soon expect to receive children from elsewhere in the country as so few are currently allowed to cross the border.
They worry that the administration鈥檚 calls to Texas suggest a broader effort to transfer unaccompanied minors to the state, from where it is easier to quickly deport them.
鈥淲e are concerned, as are our legal service provider partners, about a potential transfer of children to Texas where there is no independent oversight of facilities and away from many of the attorneys with whom children have built trust,鈥� said Shaina Aber, executive director of Acacia Center, which holds the overseeing federal contract for legal representation to immigrant children. 鈥淲e are awaiting the government鈥檚 plan for the tens of thousands of children 鈥� including over 20,000 who are currently represented 鈥� who receive services under this contract, many of whom are outside of Texas.鈥�
Emily Hilliard, a spokesperson for the U.S. Department of Health and Human Services, which oversees ORR, said the administration continues to pursue 鈥渆very available avenue鈥� to help kids obtain legal representation for their immigration proceedings.
Agency officials did not respond to questions about whether such transfers would occur. They said, however, that many kids initially crossed the Mexico border with Texas, where there is sufficient capacity to detain the nearly 2,000 children currently in nationwide custody.
Spokespeople for Paxton and Gov. Greg Abbott did not respond to detailed questions about the involvement of the state.
Trump鈥檚 efforts to end protections for immigrant kids
Congress in 2000 passed a that, among its stipulations, required the government to pay for some legal services for children who cross the border alone, based on the widely-held belief that children should not represent themselves in deportation proceedings.
The demand for funding became more urgent starting in 2012 when hundreds of thousands of immigrant children, mostly from Central America, began crossing the Texas border seeking to escape violence and poverty or reunite with their relatives in the U.S. Because of the federal laws and court settlement agreements intended to protect children, they for years have been among the hardest population to quickly deport.
Since taking office last year, Trump officials have at these protections, including making it more difficult for relatives to obtain children in custody, arresting them after welfare checks and to end a decades-long overseeing the rights of children in custody. Children are now staying in federal detention for months, congressional scrutiny.
A group of migrants make their way along miles of concertina wire deployed by the Texas National Guard under Operation Lone Star in El Paso on April 2, 2024. The administration is also to end the legally mandated representation contract in federal court and have failed to pay providers while last month some organization鈥檚 offices seeking evidence of financial impropriety and personal information of children. The government also is considering having military lawyers represent the government in children鈥檚 cases, Bloomberg Law
Government lawyers have repeatedly argued that their legal representation is not mandated. At a hearing in April, for example, Jonathan K. Ross, a Justice Department attorney, told the court that 鈥渘ot only is there not a right to direct legal representation at the expense of the Government,鈥� but pro bono lawyers could serve immigrant children at their own expense.
Lawyers for the advocates at the next hearing in the ongoing lawsuit this month plan to argue that the government is in contempt of federal court, partly because of the lack of payment. Kids In Need of Defense, a nonprofit by actress Angelina Jolie and the Microsoft Corporation, ended its subcontract with the Acacia Center this week as a result, saying the government owed it more than $20 million for legal services going back as far as December and has drastically reduced its staff.
鈥淭he attacks on federally funded legal service providers and the ongoing delay in payments to these organizations, as well as the unreasonable demand for sensitive data, fail to reflect the vital role attorneys play in protecting unaccompanied children and upholding the rule of law,鈥� the organization鈥檚 president, Wendy Young, said in a this week. 鈥淲e鈥痑re oftentimes 鈥痶hese鈥痗hildren鈥檚 most鈥痗ritical鈥痩ine of defense against trafficking, exploitation, and abuse.鈥�
The overarching temporary contract, overseen by the Acacia Center, ends on July 31. Although the administration is required to provide the organization with weeks of notice for how to transition the ongoing legal cases of children, it has not yet done so, which the groups argue is unlawful. At the same time, repatriation organizations in Central America have been told to prepare for a large number of children returned by the same day that contract ends.
In a to Health and Human Services Secretary Robert F. Kennedy, who oversees the child resettlement agency, U.S. Sen. Ron Wyden wrote that he had received 鈥渃redible information鈥� that the administration was using an 鈥渦nprecedented legal framework鈥� to quickly deport in its custody.
The Oregon Democrat, a ranking member of the Senate Finance Committee overseeing the budget, said to the Tribune this week that the Texas calls further add to his alarm about the plans for immigrant kids. Wyden鈥檚 staff last week raised concerns with Texas officials about the potential contract for legal representation but did not receive a confirmation of a plan.
鈥淎 sole source contract handed out by the Texas Attorney General to handle legal representation of unaccompanied children is not legal representation at all,鈥� Wyden told the Tribune. 鈥淚t is the Trump deportation agenda being executed by a political ally paid for by taxpayer dollars.鈥�
A Trump-aligned state
Immigration rights advocates say consolidating immigrant children in a border state aligned with the Trump administration would make it easier to deport them.
Jonathan White, a former deputy director of ORR during Trump鈥檚 first administration, said that the recent effort is a 鈥渢ransparent part of a larger pattern of moving all of the program's capabilities and resources into Texas with a friendly political partnership with the governor's office there and the proximity to the border in order to turn all of these systems into platforms for removal.鈥�
Texas cases are argued to the U.S. 5th Circuit Court of Appeals that has frequently ruled in the Trump administration鈥檚 favor on cases seeking to restrict the rights of immigrants. That court, for example, that the government can refuse to release most immigrants from detention. As a result, habeas petitions that argue people are wrongfully imprisoned have overwhelmed Texas federal courts and are taking to process. Immigration judges in the state deny asylum at a than elsewhere, according to federal statistics. An average of four deportation flights leave the state daily, the most in the country, according to , a human rights organization that tracks it.
Tents house of thousands of unaccompanied migrant children as well as Afghan refugees during a Biden administration effort to reduce overcrowding at the border at the Ft. Bliss military base in El Paso on September 18, 2021. Texas, along with Florida, also no longer regulates childcare facilities for immigrant children, preventing the state from investigating claims of neglect and abuse as it had for decades. Abbott that oversight through an in 2021, blaming the Biden administration for encouraging illegal immigration and conflating the issue with the ongoing longstanding state foster care crisis.
鈥淭he state of Texas is not prepared to handle this undertaking in a humane way,鈥� said Rochelle Garza, a South Texas attorney and executive director of the Texas Civil Rights Project, a statewide nonprofit legal advocacy group.
Garza, who previouslyagainst Paxton as a Democrat and serves on the , a bipartisan group created during the Eisenhower administration, said the administration鈥檚 outreach to Texas is 鈥渟imply an attempt to undermine the federal government鈥檚 constitutional role and responsibility to execute immigration law.鈥�
Texas Indigent Defense Commission
It remains unclear whether the Texas Indigent Defense Commission can legally take on the work representing immigrant children.
Rodney Ellis, a current Harris County commissioner, was a Houston state senator when he helped usher through creating the state鈥檚 legal framework for indigent defense. Ellis and two commission board members said the administration鈥檚 request for assistance on immigrant children was confounding. Helping to defend kids for civil immigration offenses is not what his bill intended, he said.
The legislation required courts to formalize procedures to provide attorneys for those who cannot afford them and set the stage for the creation of the Texas Indigent Defense Commission in 2011. Since then, the number of misdemeanor defendants without attorneys in the state have dropped by more than a half.
The organization oversees nearly three dozen state public defender offices serving more than 80 counties and operates as an entity funneling state money and highlighting best practices. Abbott鈥檚 office asked the commission to help represent the mostly misdemeanor defendants state troopers arrested during the multi-billion dollar border security program, known as , that the governor unveiled in 2021.
Despite its successes, the commission faces a significant attorney shortage and not enough resources to meet demand, making Texas the when it comes to public defense funding per capita. The state only pays about 10 cents out of every dollar of criminal indigent defense costs and the commission is asking the Legislature for an increase of more than $242 million next year to meet some of the needs over the biennium.
鈥淭he state has never put any resources into us meeting our constitutional mandate that requires that people be given adequate legal representation,鈥� Ellis said. 鈥淭his suggestion to expand the mandate is ludicrous and sounds like just a way to ignore the intent of the legislation because you're trying to thumb your nose at federal procurement rules.鈥�
, a vice chair of the commission鈥檚 board who ran and lost as a Democrat candidate for Bexar County attorney last year, said that the commission was created to improve criminal defense, not initiatives outside of that mandate.
鈥淚f the Legislature determines that the commission鈥檚 responsibilities should be expanded, it has the authority to do so,鈥� said Bethke, whose term on the commission ends this year.
State Rep. Joe Moody, an El Paso Democrat and member of the board, said he too was concerned. Although the Legislature in 2023 expanded the commission鈥檚 mandate to help with state family protective services cases, that has never been fully funded.
鈥淲hat it definitely doesn鈥檛 provide for is federal civil defense,鈥� said Moody, adding that he does not believe the state could do so without changing the government code.
It is possible that Abbott could issue an executive order to circumvent that, although the commission鈥檚 board remained unclear on that legality.
The government has previously attempted to move immigrant children to the Texas border and quickly deport them. Last year, government contractors awakened Guatemalan children in federal shelters or foster care and with little notification to their lawyers, abruptly transferred them to shelters near the Texas border. A federal judge that effort as some children were on a plane in Harlingen about to fly to Guatemala. The litigation is ongoing.
A move of immigrant children to Texas would follow on that Guatemalan attempt, said Marion "Mickey" Donovan-Kaloust, director of legal services for the Immigrant Defenders Law Center, a nonprofit organization in California involved in the legal case.
Late this week, her organization noticed that the on ORR鈥檚 website regarding the mandated 48-hour notices to attorneys before children are transferred suddenly went dark, saying 鈥渞estricted access.鈥� ORR did not respond to questions about that but advocates worry that is another sign that the administration intends to quietly transfer children.
鈥淲e've seen this pattern before,鈥� said Donovan-Kaloust.
These suspected moves to Texas, she said, would be 鈥渢he next phase of that same policy playbook.鈥�
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