Cruz et al v. Abbott et al

Filing 35

ORDER GRANTING 3 Motion for Preliminary Injunction and GRANTING IN PART AND DENYING IN PART 16 Defendants' Motion to Dismiss. Signed by Judge David A. Ezra. (tr1)

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION

DAVID CRUZ, VALENTIN REYES,
JOHNATHON RYAN, BISHOP
ENRIQUE SAN PEDRO OZANAM
CENTER, INC.,
Plaintiffs,
vs.
GREG ABBOTT, In his Official
Capacity as Governor of the State of
Texas, STEVEN C. MCCRAW, In his
Official Capacity as Director of Public
Safety, CYNTHIA LEON, In her
Official Capacity as Member of the
Texas Public Safety Commission,
FAITH JOHNSON, In her Official
Capacity as Member of the Texas
Public Safety Commission, MANNY
FLORES, In his Official Capacity as
Member of the Texas Public Safety
Commission, STEVEN P. MACH, In
his Official Capacity as Member of the
Texas Public Safety Commission,
RANDY WATSON, In his Official
Capacity as Member of the Texas
Public Safety Commission,
Defendants.
________________________________

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NO. 5:16-CV-067-DAE

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ORDER (1) GRANTING MOTION FOR PRELIMINARY INJUNCTION,
AND (2) GRANTING IN PART AND DENYING IN PART
MOTION TO DISMISS
Before the Court is (1) Plaintiffs David Cruz, Valentin Reyes,
Johnathon Ryan, and Bishop Enrique San Pedro Ozanam Center, Inc.’s
(collectively “Plaintiffs”) Motion for Preliminary Injunction (Dkt. # 3), and
(2) Defendants Greg Abbott (“Governor Abbott”), Steven C. McCraw, Cynthia
Leon, Faith Johnson, Manny Flores, Steven P. Mach, and Randy Watson’s
(collectively “Defendants”) Motion to Dismiss Plaintiffs’ First Amended
Complaint (Dkt. # 16). The Court held a hearing on these motions on March 31,
2016. At the hearing, Nina Perales, Esq., and Jack Salmon, Esq., represented
Plaintiffs, and Adam Bitter, Esq., Angela Colmenero, Esq., and John Duke, Esq.,
represented Defendants.
Upon careful consideration of the arguments asserted in the
supporting and opposing memoranda, as well as the arguments presented at the
hearing, the Court (1) GRANTS Plaintiffs’ Motion for Preliminary Injunction
(Dkt. # 3), and (2) GRANTS IN PART and DENIES IN PART Defendants’
Motion to Dismiss (Dkt. # 16).

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BACKGROUND
I.

House Bill 11
In March 2015, the Texas Committee on Homeland Security took up

the matter of “the smuggling of humans and illegal contraband by transnational
gangs and perpetrators of organized crime throughout” Texas’s border and
throughout the State. (Dkt. # 17-13 at 4.) House Bill 11 (“H.B. 11”) was
introduced in an effort to “increase the presence and opportunity of law
enforcement” and give “them various tools to help them do a more effective job of
fighting . . . transnational gangs and smugglers.” (Id.) Formally, H.B. 11 relates
“to the powers and duties of the Texas Department of Public Safety [(“DPS”)],
military and law enforcement training, and the investigation, prosecution,
punishment, and prevention of certain offenses; creating an offense and increasing
a criminal penalty; [and] authorizing fees.” “H.B. 11,” 2015 Leg., 84th Sess. (Tex.
2015). Several hearings regarding H.B. 11 were held in March and April of 2015.
(Dkts. ## 17-13, 17-14, 17-17, 17-18.)
Among other provisions, section 14 of H.B. 11 proposed a revision to
the State’s human smuggling statute—section 20.05 of the Texas Penal Code.1 See
H.B. 11, § 14 (codified as amended as Tex. Penal Code Ann. § 20.05 (West

1

As originally proposed, the amendment to Tex. Penal Code § 20.05 was
contained in Section 10 of H.B. 11. (See Dkt. # 17-20 at 13.)
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2015)). The proposed amendments to the penal code included the creation of a
new criminal offense—harboring an undocumented alien, 2 as well as narrowing
the existing offense of concealing a person from law enforcement. (Id.) In the
course of legislative debate regarding section 14 of H.B. 11, several witnesses
acknowledged at the hearings that the proposed legislation might be subject to
challenge. For instance, Pastor Sammy Garcia testified that his ministry along the
border would be negatively affected because he would be subject to prosecution
for picking up a person in need and taking him “to service” because he did not
know whether the person was an undocumented alien. (Dkt. # 17-13 at 71.)
Additionally, Eugene Hildebrandt, a pastor in Austin, Texas, testified that he was
concerned about the statute’s language relating to “knowingly” harboring an
undocumented alien because his ministry to the poor did not involve inquiry into a
person’s citizenship status. (Dkt. # 17-14 at 4.) Another pastor, Lynn Godsey,
testified about her concern that law enforcement officers might target churches
where they know undocumented aliens attend and “sit outside” to arrest violators
of the statute, including those church personnel who “harbor” these undocumented
aliens. (Id. at 14–15.)

2

The Court uses the term “undocumented alien” to mean a person not lawfully
authorized to be in the United States. Cf. 8 U.S.C. § 1101(a)(3) (“The term ‘alien’
means any person not a citizen or national of the United States.”).
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In response to these and other concerns, an amendment to section 14
of H.B. 11 was offered, which focused “on an individual’s intent to obtain a
pecuniary benefit” in a human smuggling activity, such as “concealing, harboring,
or shielding that person from detection.” (See Dkt. # 17-14 at 78–79.) When
introducing the amendment, Representative Joe Moody commented that “I think
that what we’ve done here is make sure that the folks we’re targeting with this
statute are the ones that we’re going to get. I think that’s everybody’s goal. I think
we don’t want to have unintended consequences.” (Id. at 79.) The substitution to
the proposed bill was adopted without objection. (Id. at 80.) Subsequently, the
Committee unanimously approved sending the amended bill to the full House of
Representatives. (Id. at 81.)
In May 2015, an amended version of H.B. 11, not significantly
affecting the language proposed in section 14, was eventually adopted by both the
House and the Senate. On June 9, 2015, Governor Greg Abbott signed H.B. 11
into law. In signing H.B. 11, Governor Abbott commented that Texas “cannot be
naïve to the threat posed by drug cartels and transnational gangs. And Texas will
not sit idly by while the federal government fails to do its job and secure the
border.” (Dkt. # 4 at 136.) Governor Abbott further commented “[t]he issues exist
in the first place because we have a failed federal government that has refused to
address the issues to tackle those problems. . . . Those are national, federal-based
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issues that we demand the United States federal government address and solve.
Texas is doing what it can do by passing this border security plan.” (Dkt. # 17-7 at
3.) H.B. 11 became effective on September 1, 2015. See H.B. 11. Since its
enactment, DPS has enforced section 14’s criminal provisions at least once. (See
Dkt. # 4 at 145–46.)
II.

Plaintiffs’ Complaint
On January 24, 2016, Plaintiffs filed suit against Defendants in this

Court. (Dkt. # 1.) Plaintiffs’ amended complaint challenges sections 14(a)(2),
15(a), and 16(a)(17) of H.B. 11 (“H.B. 11’s harboring provisions”).3 (Dkt. # 9.)
As discussed above, section 14(a)(2) states that “[a] person commits an offense if
the person, with the intent to obtain a pecuniary benefit, knowingly . . . encourages
or induces a person to enter or remain in this country in violation of federal law by
concealing, harboring, or shielding that person from detection.” H.B. 11,
§ 14(a)(2); Tex. Penal Code § 20.05. Section 15(a) addresses the “continuous
smuggling of persons,” stating that “a person commits an offense if, during a
period that is 10 or more days in duration, the person engages two or more times in
conduct that constitutes an offense under” section 14. H.B. 11, § 15(a); Tex. Penal
Code § 20.06. Section 16(a)(17) states that “[a] person commits an offense if, with
the intent to establish, maintain, or participate in a combination or in the profits of
3

Plaintiffs do not challenge the whole of H.B. 11, only these stated harboring
provisions.
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a combination or as a member of a criminal street gang, the person commits or
conspires to commit . . . any offense [under section 14 or 15].” H.B. 11,
§ 16(a)(17); Tex. Penal Code § 71.02(a).
Plaintiffs argue that H.B. 11’s harboring provisions violate the
Supremacy Clause, Article VI, Clause 2 of the United States Constitution.
Plaintiffs contend the harboring provisions “attempt to regulate matters that are
exclusively reserved to the federal government, because they operate in a field over
which Congress has exercised exclusive authority, and because they conflict and
interfere with the implementation and enforcement of federal laws and
regulations.” (Dkt. # 9 at 15.) Plaintiffs also attack H.B. 11’s harboring provisions
on the grounds that they violate both the Due Process Clause and the Equal
Protection Clause of the 14th Amendment of the U.S. Constitution. (Id. at 15.)
On January 25, 2016, Plaintiffs moved for a preliminary injunction.
(Dkt. # 3.) Defendants filed a response to the motion on February 26, 2016 (Dkt.
# 17); Plaintiffs filed a reply on March 11, 2016 (Dkt. # 20.) In responding to
Plaintiff’s motion on February 26, 2016, Defendants simultaneously moved to
dismiss Plaintiffs’ amended complaint. (Dkt. # 16.) Plaintiffs filed a response on
March 12, 2016 (Dkt. # 22); Defendants filed a reply on March 23, 2016 (Dkt.
# 26.) The pending motions are addressed below.

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III.

Legal Standards
A.

Preliminary Injunction Standard
The grant of injunctive relief is an extraordinary remedy which

requires the movant to unequivocally show the need for its issuance. Opulent Life
Church v. City of Holly Springs, Miss., 697 F.3d 279, 288 (5th Cir. 2012);
Valley v. Rapides Parish Sch. Bd., 118 F.3d 1047, 1050 (5th Cir. 1997). A
preliminary injunction should not be granted unless the movant demonstrates by a
clear showing: (1) a substantial likelihood of success on the merits; (2) a
substantial threat of irreparable harm if the injunction is not granted; (3) that the
threatened injury outweighs any harm that may result from the injunction to the
non-movant; and (4) that the injunction will not undermine the public interest.
Lindsay v. City of San Antonio, 821 F.2d 1103, 1107 (5th Cir. 1987); Valley, 118
F.3d at 1051. However, even when a movant establishes each of the four
requirements described above, the decision whether to grant or deny a preliminary
injunction remains within the Court’s discretion, and the decision to grant a
preliminary injunction is treated as the exception rather than the rule. Miss. Power
& Light Co. v. United Gas Pipe Line Co., 760 F.2d 618, 621 (5th Cir. 1985).
B.

Motion to Dismiss Standards
Defendants move to dismiss Plaintiffs’ claims under both Federal

Rules of Civil Procedure 12(b)(1) and 12(b)(6). (Dkt. # 16.)
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1.

Fed. R. Civ. P. 12(b)(1)

Pursuant to Federal Rule of Civil Procedure 12(b)(1), a defendant may
move to dismiss a complaint for lack of subject-matter jurisdiction. The plaintiff,
as the party asserting jurisdiction, bears the burden of proving that subject-matter
jurisdiction exists. Choice Inc. of Tex. v. Greenstein, 691 F.3d 710, 714 (5th Cir.
2012). A district court may dismiss for lack of subject-matter jurisdiction on any
one of the following bases: “(1) the complaint alone; (2) the complaint
supplemented by undisputed facts evidenced in the record; or (3) the complaint
supplemented by undisputed facts plus the court’s resolution of disputed facts.”
Voluntary Purchasing Grps., Inc. v. Reilly, 889 F.2d 1380, 1384 (5th Cir. 1989).
However, “a motion to dismiss for lack of subject matter jurisdiction should be
granted only if it appears certain that the plaintiff cannot prove any set of facts in
support of his claim that would entitle plaintiff to relief.” Ramming v. United
States, 281 F.3d 158, 161 (5th Cir. 2001).
2.

Fed. R. Civ. P. 12(b)(6)

Federal Rule of Civil Procedure 12(b)(6) authorizes dismissal of a
complaint for “failure to state a claim upon which relief can be granted.” Review
is limited to the contents of the complaint and matters properly subject to judicial
notice. See Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322
(2007). In analyzing a motion to dismiss for failure to state a claim, “[t]he court
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accepts ‘all well-pleaded facts as true, viewing them in the light most favorable to
the plaintiff.’” In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir.
2007) (quoting Martin K. Eby Constr. Co. v. Dallas Area Rapid Transit, 369 F.3d
464, 467 (5th Cir. 2004)). To survive a Rule 12(b)(6) motion to dismiss, the
plaintiff must plead “enough facts to state a claim to relief that is plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009).
A complaint need not include detailed facts to survive a Rule 12(b)(6)
motion to dismiss. See Twombly, 550 U.S. at 555–56. In providing grounds for
relief, however, a plaintiff must do more than recite the formulaic elements of a
cause of action. See id. at 556–57. “[T]he tenet that a court must accept as true all
of the allegations contained in a complaint is inapplicable to legal conclusions,”
and courts “are not bound to accept as true a legal conclusion couched as a factual
allegation.” Iqbal, 556 U.S. at 678 (internal quotations and citations omitted).
Thus, although all reasonable inferences will be resolved in favor of the plaintiff,
the plaintiff must plead “specific facts, not mere conclusory allegations.”
Tuchman v. DSC Commc’ns Corp., 14 F.3d 1061, 1067 (5th Cir. 1994); see also

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Plotkin v. IP Axess Inc., 407 F.3d 690, 696 (5th Cir. 2005) (“We do not accept as
true conclusory allegations, unwarranted factual inferences, or legal conclusions.”).
IV.

Discussion
A.

Standing
Defendants argue that Plaintiffs lack standing to sue because they

cannot demonstrate the existence of an imminent injury-in-fact. (Dkt. # 16 at 21.)
Defendants assert that Plaintiffs have failed to properly allege that they will engage
in any future conduct prohibited by the statute. (Id.) As such, Defendants contend
that Plaintiffs’ complaint must be dismissed pursuant to Federal Rule of Civil
Procedure 12(b)(1). (Id.)
Under section 2 of Article III of the Constitution, federal courts have
jurisdiction over a dispute “only if it is a case or controversy. This is a bedrock
requirement.” Raines v. Byrd, 521 U.S. 811, 818 (1997); see also Miss. State
Democratic Party v. Barbour, 529 F.3d 538, 544 (5th Cir. 2008). To have
standing, “the plaintiff [must have] personally suffered some actual or threatened
injury that can fairly be traced to the challenged action and is redressable by the
courts.” Doe v. Tangipahoa Parish Sch. Bd., 494 F.3d 494, 496 (5th Cir. 2007). A
plaintiff must prove, and not merely assert, standing to sue in order to meet the
case or controversy requirement of Article III. Id. at 496–97.

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To establish standing, “a plaintiff must show: (1) [he] has suffered, or
imminently will suffer, a concrete and particularized injury-in-fact; (2) the injury is
fairly traceable to the defendant’s conduct; and (3) a favorable judgment is likely
to redress the injury.” Hous. Chronicle Publ’g Co. v. City of League City, Tex.,
488 F.3d 613, 617 (5th Cir. 2007); see FW/PBS, Inc. v. Dallas, 493 U.S. 215, 231
(1990).
“Beyond the constitutional requirements, the federal judiciary has also
adhered to a set of prudential principles that bear on the question of standing.”
Valley Forge Christian Coll. v. Ams. United for Separation of Church and State,
454 U.S. 464, 474 (1982). A plaintiff must assert his own legal rights and “cannot
rest his claim to relief on the legal rights or interests of third parties.” Id. The
Court may not adjudicate “abstract questions of wide public significance which
amount to generalized grievances.” Id. at 475 (quotation omitted). Finally, the
plaintiffs’ complaint must fall within “the zone of interests to be protected or
regulated by the statute or constitutional guarantee in question.” Id. (quotation
omitted). “Where a party champions his own rights, and where the injury alleged
is a concrete and particularized one which will be prevented or redressed by the
relief requested, the basic practical and prudential concerns underlying the standing
doctrine are generally satisfied when the constitutional requisites are met.” Duke
Power Co. v. Carolina Envtl. Study Grp., 438 U.S. 59, 80–81 (1978).
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Additionally, every plaintiff need not have standing to assert every claim. The
Court has jurisdiction over a claim if at least one plaintiff has standing to assert the
claim. See Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252,
264 (1977).
Plaintiffs, who invoked the Court’s jurisdiction, have the burden of
establishing these elements. Duke Power Co., 438 U.S. at 80–81. “Since they are
not mere pleading requirements but rather an indispensable part of the plaintiff’s
case, each element must be supported in the same way as any other matter on
which the plaintiff bears the burden of proof.” Lujan v. Defs. of Wildlife, 504 U.S.
555, 561 (1992).
1.

The Individual Plaintiffs

The individual plaintiffs in this case are David Cruz and Valentin
Reyes (“individual plaintiffs”). (Dkt. # 9.) Plaintiff Cruz owns two single-family
homes and two duplexes in San Antonio, Texas. (Id. at 2.) Cruz rents these
properties to persons on a monthly basis and receives monthly income from these
properties totaling over $3,000. (Id.) According to Plaintiffs, Cruz does not
“require his tenants to reveal their citizenship or immigration status before
occupying his properties, and he does not know the immigration status of his
present tenants.” (Id. at 3.) Similarly, Plaintiff Reyes owns a single-family home
in Farmers Branch, Texas that he rents out on a monthly basis. (Id.) Plaintiffs
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allege that Reyes “has rented his property in the past to immigrants and plans to
continue to do so for the foreseeable future.” (Id.) Reyes also does not require his
tenants to reveal their citizenship or immigration status prior to leasing his property
to them. (Id. at 4.)
Defendants attack the individual plaintiffs’ standing on the basis
that neither Cruz nor Reyes have a credible threat of prosecution under H.B. 11’s
harboring provisions because the facts alleged in their complaint acknowledge that
they have not knowingly encouraged or induced undocumented aliens to remain in
the United States in violation of federal law. (Dkt. # 16 at 22.) Defendants argue
that “[w]ithout the requisite mens rea to fall within reach of the statute, Cruz’s and
Reyes’s purported injuries are far too speculative.” (Id.) Defendants further
contend that the individual plaintiffs lack standing because they have not alleged
that they have done the prohibited activities with the intent to obtain a pecuniary
benefit. (Id.) Because they cannot demonstrate the required elements in order to
be held criminally liable under the statute, then Defendants argue that the
individual plaintiffs have no standing. (Id.)
As stated earlier, section 14(a) of H.B. 11 requires that a person
“knowingly . . . encourage[] or induce[] a person to enter or remain in this country
in violation of federal law by concealing, harboring, or shielding that person from
detection.” H.B. 11 § 14(a)(2). Section 6.03(b) of the Texas Penal Code states
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that “[a] person acts knowingly, or with knowledge, with respect to the nature of
his conduct or to circumstances surrounding his conduct when he is aware of the
nature of his conduct or that the circumstances exist.” Tex. Penal Code § 6.03(b).
The statute also states that “[a] person acts knowingly, or with knowledge, with
respect to a result of his conduct when he is aware that his conduct is reasonably
certain to cause the result.” Id.
The individual plaintiffs have demonstrated the requisite mens rea
under the penal code to result in a credible threat of prosecution under H.B. 11’s
harboring provisions. First, although Reyes does not inquire into his tenants’
immigration status when leasing his property, Reyes states that he learned that
“one of [his] tenants was undocumented while a family was renting from” him and
then later as the family became comfortable with him, “the wife told me that her
husband was undocumented.” (Dkt. # 22-1 at 43.) Reyes states that upon learning
of their immigration status, he “did not terminate the lease or try to evict the
family.” (Id.) Reyes “expect[s] to rent to undocumented tenants in the future.”
(Id.) Reyes states that he will have to change his business practices if forced to
comply with H.B. 11’s harboring provisions, including inter alia, losing potential
business income if he starts “asking prospective tenants to prove their immigration
status” because they “will be deterred from seeking to rent [his] property out of

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fear that [he] will reject them as tenants or report them to immigration authorities.”
(Id. at 44.)
Similarly, Cruz “learned that one of [his] tenants was undocumented
when he told [him] that he had trouble finding a job because of his undocumented
status,” but that Cruz “did not terminate the lease or try to evict the tenant.” (Dkt.
# 22-1 at 51.) In fact, Cruz states that as his tenants become comfortable with him,
they often reveal their immigration status as undocumented aliens, but he doesn’t
evict them or terminate their lease. (Id.) Cruz, like Reyes, expects to rent his
properties to undocumented aliens in the future. (Id. at 52.) Cruz would also have
to significantly change his business practices, which would be burdensome and
time-consuming, in order to screen tenants for their immigration status. (Id.) He
believes any inquiry into their immigration status would also be an invasion of
their privacy and that they would be deterred from renting his properties out of fear
of rejection or his reporting them to immigration officials. (Id.)
On these facts, the individual plaintiffs, Cruz and Reyes, have
demonstrated “a serious[] interest[] in acting contrary to a statute.” Barbour, 529
F.3d at 545 n.8 (internal quotations omitted). “[I]t is sufficient for standing
purposes that the plaintiff intends to engage in a ‘course of conduct arguably
affected with a constitutional interest’ and that there is a credible threat that the
provision will be invoked against the plaintiff.” Valle del Sol, 732 F.3d at 1015
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(quoting Ariz. Right to Life Political Action Comm. v. Bayless, 320 F.3d 1002,
1006 (9th Cir. 2003)). Cruz and Reyes’s statements clearly indicate their intention
of concealing, harboring, or shielding their tenants who are undocumented aliens
from detection. See Valle del Sol, 732 F.3d at 1017. Furthermore, Cruz and
Reyes’s collection of monthly rent from their undocumented tenants meets H.B. 11
§ 14’s requirement that their actions were done “with the intent to obtain a
pecuniary benefit.” These actions fall squarely within the plain language of H.B.
11’s harboring provisions.
Furthermore, Cruz and Reyes have presented evidence that
enforcement of H.B. 11’s harboring provisions would add significant intrusive and
time-consuming burdens and harm to their ability to lease their properties. These
burdens include learning immigration classifications, reviewing immigration
paperwork, and possibly hiring an immigration attorney to review future tenants’
immigration status, all of which may result in a loss of business—and therefore
rental income—from prospective tenants. (Dkt. # 22-1 at 44–45, 52–53.) The
Court does not need to resolve any disputes over the exact measure of harm to find
that the individual plaintiffs have satisfied their burden to show an injury-in-fact,
as the statute’s “validity could be assessed without knowing the precise means and
expense of compliance.’” Villas at Parkside Partners v. City of Farmers Branch,
Tex., 701 F. Supp. 2d 835, 850 (N.D. Tex. 2010), aff’d, 726 F.3d at 524 (quoting
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520 S. Mich. Ave. Assocs. v. Devine, 433 F.3d 961, 963 (7th Cir. 2006) (en banc)).
Accordingly, Cruz and Reyes have demonstrated a realistic threat of injury as a
result of H.B. 11’s harboring provisions and they have sufficiently alleged
standing. 4 And, because Cruz and Reyes have standing to assert their claims, then
the plaintiff organizations do as well. See Vill. of Arlington, Heights, 429 U.S. at
264 n.9 (deciding that since one plaintiff had standing, then the Court “need not
consider whether the other individual and corporate plaintiffs have standing to
maintain the suit”). Still, to be thorough, the Court will examine the plaintiff
organizations’ standing to bring their claims.
2.

The Plaintiff Organizations

The plaintiff organizations in this case are Johnathon Ryan, the
Executive Director of the Refugee and Immigrant Center for Education and Legal
Services (“RAICES”), and the Bishop Enrique San Pedro Ozanam Center, Inc.
(“the Ozanam Center”) (collectively “plaintiff organizations”). (Dkt. # 9.)
RAICES provides free and low-cost legal services to underserved undocumented
children, families, and refugees in Central and South Texas. (Id. at 4.) RAICES
also operates two temporary shelters that provide post-relief services to
undocumented aliens leaving detention centers. (Id.) In his role as Director of

4

The Court by its ruling does not condone Cruz and Reyes’s leasing practices; the
issue before the Court is not the propriety of their activities, but whether Cruz and
Reyes fall within the reach of H.B. 11’s harboring provisions.
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RAICES, Plaintiff Ryan “provides shelter to immigrant women and children who
are not authorized to be present in the U.S. and lack lawful immigration status.”
(Id.) According to Plaintiffs, Ryan also provides food, clothing, and shelter to
these same persons. (Id.) In return, Plaintiffs allege that the undocumented aliens
who stay at RAICES’s temporary shelters help out with daily maintenance and
cleaning chores. (Id.)
Plaintiff Ryan also works at the RAICES office in downtown San
Antonio, Texas, where attorneys and other legal staff provide legal services to
undocumented aliens on a pro bono or reduced-fee basis. (Dkt. # 9 at 5.)
According to Plaintiffs, because there is a high demand for these legal services,
prospective clients must line up and wait outside the doors of the RAICES office.
(Id.) Because of this, Plaintiffs argue that these undocumented aliens are “easily
visible to state and local law enforcement while they wait outside.” (Id.)
The Ozanam Center is a homeless shelter in Brownsville, Texas.
(Dkt. # 9 at 6.) Like the services provided by RAICES, the Ozanam Center
“provides temporary shelter and transitional housing to individuals and families
regardless of sex, race, color, creed, national origin, and immigration status.” (Id.)
Guests sheltered at the Ozanam Center are either self-referred or referred by local
and federal law enforcement agencies, including the United States Immigration and
Customs Enforcement (“ICE”). (Id.) These guests, according to Plaintiffs, include
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undocumented individuals, families, and expectant mothers who have been
released from ICE detention centers and are currently in removal proceedings.
(Id.) Plaintiffs contend that the Ozanam Center does not inquire into their guests’
immigration or citizenship status and “[o]n information and belief, many guests are
not authorized to be present in the United States and lack lawful immigration
status.” (Id.) Like the RAICES shelters, guests at the Ozanam Center contribute to
its maintenance by providing daily chores, including cleaning, preparing meals and
taking out the trash. (Id. at 7.)
Defendants contend that the plaintiff organizations do not have
standing because H.B. 11 does not apply to them. (Dkt. # 16 at 22.) They argue
that the actus reus of H.B. 11’s harboring provisions requires that the unlawful acts
of harboring or concealing an undocumented alien be committed “with the intent to
obtain a pecuniary benefit.” (Id.) Because the legislature amended section 14 of
H.B. 11 to exclude from criminal prosecution organizations like RAICES and the
Ozanam Center, then Defendants argue that they have failed to demonstrate the
existence of a concrete, as opposed to purely speculative, injury-in-fact for
purposes of standing. (Id. at 23.)
An organization may have standing in its own right or based on the
rights of its members. Warth v. Seldin, 422 U.S. 490, 511 (1975). For an
organization to be able to sue in its own right, a court must consider whether an
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organizational plaintiff has “alleged such a personal stake in the outcome of the
controversy as to warrant [its] invocation of federal-court jurisdiction.” Havens
Realty Corp. v. Coleman, 455 U.S. 363, 378–79 (1982) (quotation omitted). “[A]n
organization may establish injury in fact by showing that it [will] divert[]
significant resources to counteract the [challenged statute]; hence, the defendant’s
conduct [in enacting the statute] significantly and ‘perceptibly impaired’ the
organization’s ability to provide its ‘activities—with the consequent drain on the
organization’s resources.’” NAACP v. City of Kyle, Tex., 626 F.3d 233, 238 (5th
Cir. 2010) (quoting Havens, 455 U.S. at 379). “Such injury must be concrete and
demonstrable.” Id.
Contrary to Defendants’ contention, Plaintiff Ryan and the Ozanam
Center face a credible threat of prosecution. Both RAICES and the Ozanam
Center provide shelter to undocumented aliens on a continuous basis. While the
Ozanam Center does not ask individuals who seek shelter their immigration status,
“after a day or two, as they become comfortable with the staff, many talk about the
fact that they are undocumented.” (Dkt. # 22-1 at 62.) As a result, the shelter
“currently provides, and regularly provides, shelter to undocumented individuals.”
(Id.) In exchange for shelter, residents at the Ozanam Center “perform work to
assist in the operation of the shelter; this work can be valued in money, including
cleaning, cooking, directing other residents and maintenance.” (Id. at 63.)
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Additionally, the Ozanam Center receives a monthly stipend from the Catholic
Diocese of Brownsville, Texas. (Id.) Similarly, Plaintiff Ryan, through RAICES,
provides shelter to undocumented aliens. (Dkt. # 4 at 157.) Ryan also provides
legal services to undocumented aliens through RAICES downtown office.
Individuals who receive shelter at RAICES contribute to the shelter’s maintenance
“by performing chores including sweeping the floors, making beds, doing laundry,
and taking out the trash.” (Id.)
Because the work the undocumented aliens provide in exchange for
shelter at both RAICES and the Ozanam Center may be reduced to a monetary
value, the organizational plaintiffs have a pecuniary interest in continued sheltering
of undocumented individuals. See Black’s Law Dictionary (9th ed. 2009)
(defining “pecuniary” as “[o]f or relating to money; monetary”). Additionally, the
Ozanam Center receives a monthly stipend for its work with individuals in need,
including those who are undocumented aliens. RAICES, without maintenance
help, and the Ozanam Center, without maintenance help and a monthly stipend,
would not likely be able to afford to operate. In such case, Plaintiff Ryan and the
Ozanam Center have sufficiently alleged that they meet H.B. 11 § 14’s requisite
that their actions were done “with the intent to obtain a pecuniary benefit.”

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Furthermore, both RAICES and the Ozanam Center will have to
adopt costly measures to be in compliance with H.B. 11’s harboring provisions.
The Ozanam Center will not only have to change the mission of the organization—
“to serve the needy regardless of immigration status”—but it will also have to
change its business practices in order to screen for an individual’s immigration
status. (Dkt. # 22-1 at 64.) Changing business practices to screen for
“immigration status would increase the time it takes the Center to conduct intakes,
drain [its] very limited administrative resources and reduce [its] ability to serve the
shelter’s residents.” (Id.) Similarly, Plaintiff Ryan would no longer be able to
operate RAICES because of its specific purpose of providing shelter and aid to
undocumented aliens. This realistic injury “significantly and perceptibly impair[s]
the organization’s ability to provide its activities.” NAACP, 626 F.3d at 238
(quotation omitted). Accordingly, the plaintiff organizations, in addition to the
individual plaintiffs, have sufficiently alleged standing in their own right. 5

5

The Court notes the individual plaintiffs and plaintiff organizations in this case
are comparable to the plaintiffs in cases in other circuits challenging similar antiharboring laws, as discussed below; notably, the Ninth and Eleventh Circuits held
that the individual plaintiffs and plaintiff organizations in those cases had standing
to challenge the anti-harboring laws at issue there. See Valle del Sol, 732 F.3d at
1017–19 (holding that a pastor who “provides shelter to persons who seek
sanctuary in her church” and organizations who provide services to homeless and
undocumented aliens had standing); Ga. Latino Alliance for Human Rights
(“GLAHR”) v. Governor of Ga., 691 F.3d 1250, 1258–60 (11th Cir. 2012) (ruling
that civil immigration attorney who provides services including transportation and
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3.

Threatened Injury

Defendants also argue that Plaintiffs’ fears of future enforcement are
not credible and cannot confer standing. (Dkt. # 16 at 23.) Defendants assert that
Plaintiffs have not offered any evidence that they have been, or are currently being,
investigated by any state or local law enforcement agency for violations of H.B.
11’s harboring provisions. (Id.)
Although a plaintiff “must demonstrate a realistic danger of sustaining
a direct injury as a result of a statute’s operation or enforcement,” a plaintiff “does
not have to await until the consummation of threatened injury to obtain
preventative relief.” Valle del Sol Inc. v. Whiting, 732 F.3d 1006, 1015 (9th Cir.
2013), cert. denied __U.S.__, 134 S.Ct. 1876, 188 L.Ed. 2d 911 (2014) (quoting
Babbitt v. United Farm Workers, 442 U.S. 289, 298–99 (1979)). As such, neither
Reyes nor Cruz must wait until prosecution to challenge any of H.B. 11’s
harboring provisions. Id. “When the plaintiff has alleged an intention to engage in
a course of conduct arguably affected with a constitutional interest, but proscribed
by a statute, and there exists a credible threat of prosecution thereunder,” he should
not wait for criminal prosecution to seek relief. Babbitt, 442 U.S. at 298.

legal advice, as well as organization that provides services to undocumented aliens
had standing).
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At the hearing on Plaintiffs’ motion for preliminary injunction and
Defendants’ motion to dismiss, the Court asked Defendants for an unequivocal
answer from the Attorney General as to whether any of the Plaintiffs’ conduct fell
within the ambit of section 20.05(a)(2) of the Texas Penal Code. The Court gave
Defendants five days to submit their answer in a supplemental brief. On April 4,
2016, Defendants filed a declaration of Defendant McCraw, who stated that he was
the Executive Director of DPS and the Governor’s Homeland Security Advisor.
(Dkt. # 31-1 at 1.) In this position, according to McCraw, he oversees
commissioned officers of DPS, including State Troopers, Rangers, and Special
Agents. (Id. at 1–2.) McCraw further stated that he reviewed certain documents in
this case and that “[b]ased on the facts alleged by [Plaintiffs] . . . , DPS officials
would not investigate, file criminal charges, or otherwise engage in enforcement
activity pursuant to the present version of Section 20.05 of the Texas Penal Code
against individuals engaged in such conduct.” (Id. at 2.)
McCraw’s declaration, however, fails to unequivocally respond to the
Court’s request for a binding interpretation as to the scope of the current version of
section 20.05 of the Texas Penal Code and whether it applies to Plaintiffs. First,
McCraw’s statement does not bind county prosecutors or local law enforcement
officers who may choose to enforce section 20.05 even if certain state law
enforcement officers would not. Likewise, McCraw’s statements do not purport to
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bind his codefendants—the State of Texas, Governor Abbott, or the other
Defendants who are members of the Texas Public Safety Commission. Second, as
discussed above, the plain language of section 20.05 clearly includes the conduct
described by both the individual plaintiffs and the plaintiff organizations.
Furthermore, state police have already arrested individuals for
violation of H.B. 11’s harboring provisions. (Dkt. # 4 at 145.) Indeed, more
arrests are likely to follow in light of Governor Abbott’s award of grants totaling
more than $4 million to border security actions and his indefinite deployment of
the Texas National Guard in the Rio Grande Valley. (Id. 149–50.) Defense
counsel’s statements at oral argument also make clear that the state of Texas
intends to enforce H.B. 11’s harboring provisions. Accordingly, Defendants’
arguments regarding whether Plaintiffs face a credible threat of prosecution are
without merit.
4.

Governor Abbott

Defendants next contend that even if Plaintiffs could demonstrate
purported injuries, they are not traceable to, nor likely to be redressed by, the relief
sought against Governor Abbott. (Dkt. # 16 at 24.) Defendants assert that
without any showing of redressability or traceability by Plaintiffs, their “suit
amounts to nothing more than an impermissible request for an advisory opinion.”
(Id. at 25.) In such case, Defendants argue that Governor Abbott is not a proper
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defendant and that Plaintiffs cannot establish that he has any special enforcement
authority over H.B. 11’s harboring provisions. Without any such showing,
Defendants contend that Plaintiffs lack standing to assert their claims against
Governor Abbott.
In response, Plaintiffs argue that Governor Abbott has a direct role in
the enforcement of H.B. 11’s harboring provisions because he appoints the
members of the Texas Public Safety Commission (“the Commission”) and also
supervises that agency. (Dkt. # 22-1 at 27.) Because the Commission oversees
and adopts the rules that DPS and state law enforcement enforce, Plaintiffs contend
that Governor Abbott is a proper Defendant. (Id.) Additionally, Plaintiffs assert
that Governor Abbott’s awarding of grant money to state and local law
enforcement agencies, including funding to the Border Prosecution Unit created by
H.B. 11, evidences his direct connection to enforcement of H.B. 11’s harboring
provisions. (Id. at 29.) Furthermore, Plaintiffs contend that Governor Abbott has
publicly and explicitly expressed an interest in protecting the citizens of Texas,
“with or without the federal government’s help.” (Id.)
A plaintiff satisfies the redressability requirement of standing by
showing it is “likely, as opposed to merely speculative, that the injury will be
redressed by a favorable decision.” League of United Latin Am. Citizens,
Dist. 19 v. City of Boerne, 659 F.3d 421, 431 (5th Cir. 2011). Still, a plaintiff
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“need not show that a favorable decision will relieve his every injury,” but only
that such a decision will “relieve a discrete injury to himself.” K.P. v. LeBlanc,
627 F.3d 115, 123 (5th Cir. 2010) (citing Larson v. Valente, 456 U.S. 228, 243 n.
15 (1982)).
In Okpalobi v. Foster, the Fifth Circuit ruled on whether the Governor
and Attorney General had power to redress the injury alleged by the plaintiffs in
that case. 244 F.3d 405 (5th Cir. 2001). The Fifth Circuit determined that the
Governor and Attorney General had no power to enforce the challenged statute,
which was solely enforceable by private litigants. Id. at 428–29. Based on this,
the Fifth Circuit held that the Governor and Attorney General had no power to
redress the alleged injury. Id. In a concurring opinion, Judge Higginbotham
opined that the plaintiffs in that case failed to meet the causation and redressability
requirements because “[t]he defendants could not threaten enforcement of the
targeted state law; they lack the authority to do so.” Id. at 431. Both officials in
that case did not have “any duty or ability to do anything.” Id. at 427 (emphasis in
original).
Unlike Okpalobi, Plaintiffs here have demonstrated that Governor
Abbott has at least some enforcement authority of H.B. 11 given his supervisory
role over the Committee and his funding and public statements regarding H.B. 11’s
enactment. Cf. Veasey v. Perry, 29 F. Supp. 3d 896, 924 (S.D. Tex. 2014) (“The
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Court determines that Governor Perry has some connection with the enforcement
of S.B. 14 sufficient to make him a proper Defendant.”) An injunction of his
enforcement would likely redress a discrete injury to Plaintiffs by prohibiting his
enforcement of H.B. 11’s harboring provisions. See K.P., 627 F.3d at 123.
Accordingly, the Court finds that based on the facts alleged in the amended
complaint, Plaintiffs have standing to assert their claims against Governor Abbott.
B.

Right of Action
Defendants also move to dismiss on the ground that Plaintiffs lack a

right of action to support their preemption claims. (Dkt. # 16 at 27.) Specifically,
Defendants argue that Plaintiffs must demonstrate not only federal subject matter
jurisdiction to bring their claims under the Supremacy Clause,6 but they must also
demonstrate that they have a right of action to do so. (Id. at 27–28.) Defendants
contend that Plaintiffs have neither a private, equitable, or statutory right of action
to bring their preemption claims. (Id. at 27–34.)
While Plaintiffs do not have a private right of action under the
Supremacy Clause to bring their preemption claims, they may, contrary to
Defendants’ contention, bring their suit in equity to enjoin an unconstitutional
action. The Supreme Court recently held that “[t]he ability to sue to enjoin
unconstitutional actions by state and federal officers is the creation of courts of
6

Defendants concede that they “do not quibble with the fact that the case ‘arises
under’ the ‘Constitution.’” (Dkt. # 16 at 28 (citing U.S. Const. art. III, § 2).)
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equity, and reflects a long history of judicial review of illegal executive action,
tracing back to England.” Armstrong v. Exceptional Child Ctr., Inc., __U.S.__,
135 S.Ct. 1378, 1384, 191 L.Ed. 2d 471 (2015). Therefore, it is a “judge-made’
equitable remedy, and it does not “rest[] upon an implied right of action contained
in the Supremacy Clause.” Id. Accordingly, Plaintiffs have a right of action in
equity to bring their claims under the Supremacy Clause against Defendants.
C.

Preemption
In support of a preliminary injunction, Plaintiffs contend that

H.B. 11’s harboring provisions are unconstitutional because they violate the
Supremacy Clause of the United States Constitution. See U.S. Const. art. VI, cl. 2.
Plaintiffs contend that the harboring provisions intrude in a field occupied by the
federal government and conflict with the purposes of federal immigration statutes.
(Dkt. # 4 at 7.) Plaintiffs further argue that because they are likely to prevail on
their preemption claim, and because they satisfy the other requirements for a
preliminary injunction, this Court should enjoin Defendants from enforcing
section 14(a)(2) of H.B. 11 during the pendency of this suit. 7 (Id.)
Defendants respond that “[t]his case is not about immigration” and it
is not “about the State of Texas trying to intrude on an area of regulation controlled

7

Plaintiffs further ask the Court to enjoin enforcement of H.B. 11’s other
harboring provisions, sections 15(a) and 16(a)(17), to the extent they incorporate
section 14(a)(2). (Dkt. # 4 at 26.)
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by the federal government.” (Dkt. # 17 at 8.) Defendants instead assert that H.B.
11 is about “protecting unauthorized aliens from human smugglers.” (Id.)
Defendants argue that Plaintiffs do not have a likelihood of success on the merits
because they cannot demonstrate that federal law preempts the challenged H.B. 11
provisions. (Id. at 22.) Defendants further contend that Plaintiffs cannot show any
irreparable harm because they cannot demonstrate that they will be harmed by any
provision of H.B. 11. (Id.)
In accordance with the Supremacy Clause, federal law “shall be the
supreme Law of the Land; and the Judges in every state shall be bound thereby,
any Thing in the Constitution or Laws of any State to the Contrary
notwithstanding.” U.S. Const. art. VI, cl. 2. The Supreme Court has ruled that “in
the absence of an express preemption provision, a state or local law may be
required to ‘give way to federal law’ under at least two circumstances: field and
conflict preemption.” Villas at Parkside Partners v. City of Farmers Branch, Tex.,
726 F.3d 524, 528 (5th Cir. 2013) (en banc) (quoting Arizona v. United States,
__U.S.__, 132 S.Ct. 2492, 2501, 183 L.Ed. 2d 351 (2012)).
“First, states and localities may not ‘regulat[e] conduct in a field that
Congress, acting within its proper authority, has determined must be regulated by
its exclusive governance.’” Villas at Parkside, 726 F.3d at 528 (quoting Arizona,
132 S.Ct. at 2501). “The intent to displace state law altogether can be inferred
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from a framework of regulation ‘so pervasive . . .that Congress left no room for the
States to supplement it’ or where there is a ‘federal interest . . . so dominant that
the federal system will be assumed to preclude enforcement of state laws on the
same subject.’” Arizona, 132 S.Ct. at 2501 (quoting Rice v. Santa Fe Elevator
Corp., 331 U.S. 218, 230 (1947)).
“Second, state and local laws are preempted ‘when they conflict with
federal law.’” Villas at Parkside, 726 F.3d at 528 (quoting Arizona, 132 S.Ct. at
2501). “This includes cases where ‘compliance with both federal law and state
regulations is a physical impossibility,’ and those instances where the challenged
law ‘stands as an obstacle to the accomplishment and execution of the full
purposes and objectives of Congress.’” Arizona, 132 S.Ct. at 2501 (quoting
Hines v. Davidowitz, 312 U.S. 52, 67 (1941)). “What is a sufficient obstacle is a
matter of judgment, to be informed by examining the federal statute as a whole and
identifying its purpose and intended effects.” Id. (quoting Crosby v. Nat’l Foreign
Trade Council, 530 U.S. 363, 372 (2000)). When conducting a preemption
analysis, a court must “assume that ‘the historic police powers of the States’ are
not superseded ‘unless that was the clear and manifest purpose of Congress.’” Id.
(quoting Rice, 331 U.S. at 230).
However, a court should start a preemption analysis with a
presumption against preemption. Wyeth v. Levine, 555 U.S. 555, 565 (2009).
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Such a presumption is strong when Congress has legislated matters in areas where
the states have traditionally occupied. Id. Nevertheless, the presumption is not
strong when the states have not traditionally legislated, especially in areas which
are “inherently federal in character.” Buckman Co. v. Plaintiffs’ Legal Comm.,
531 U.S. 341, 347 (2001).
1.

Field Preemption

Plaintiffs argue that section 14(a)(2) is field preempted because
Congress intended to preempt state alien harboring laws through a complete,
harmonious set of standards sanctioning individuals who harbor certain aliens.
(Dkt. # 4 at 12.) Specifically, Plaintiffs argue that 8 U.S.C. § 1324 occupies the
entire field of alien harboring regulation and that “[b]y delineating authority in this
manner, Congress left no room for additional state regulation.” (Id. at 12–16.)
Because Congress has occupied the entire field of alien harboring regulation,
Plaintiffs contend that H.B. 11’s harboring provisions are preempted by the
Supremacy Clause. (Id. at 16.)
Defendants, on the other hand, argue that Plaintiffs have failed to
establish that the provisions which prohibit harboring unauthorized aliens in
§ 1324 operate to preclude similar state laws on the subject. (Dkt. # 17 at 28.)
Defendants further contend that, even if there is a field of alien harboring

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regulation in which the State cannot operate, the state of Texas has not legislated in
that field in regard to H.B. 11’s harboring provisions. (Id.)
Under § 1324, “[i]t is a federal felony for any person, ‘knowing or in
reckless disregard of the fact that an alien has come to, entered, or remains in the
United States in violation of federal law,’ to ‘conceal[], harbor[], or shield[] from
detection . . . such alien in any place, including any building.’” Villas at Parkside,
726 F.3d at 529 (quoting 8 U.S.C. § 1324(a)(1)(A)(iii)). By enacting this
provision, Congress “intended to broadly proscribe any knowing or willful conduct
fairly within any of these terms that tends to substantially facilitate an alien’s
remaining in the United States illegally . . . .” United States v. Rubio-Gonzales,
674 F.2d 1067, 1073 n.5 (5th Cir. 1982). The Fifth Circuit has interpreted the
statutory phrase “‘harbor, shield, or conceal’” to imply that “‘something is being
hidden from detection.’” Villas at Parkside, 726 F.3d at 529 (quoting United
States v. Varkonyi, 645 F.2d 453, 459 (5th Cir. 1981)).
Section 1324 also outlines a detailed group of graduated punishments
for violations of the statute. 8 U.S.C. § 1324(B)(i)–(iv). Among other
punishments, § 1324(B)(i) mandates that a violation of § 1324(1)(A)(iii)—
“knowing or in reckless disregard of the fact that an alien has come to, entered, or
remains in the United States in violation of law, conceals, harbors, or shields from
detection, such alien in any place” and “in which the offense was done for the
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purpose of commercial advantage or private financial gain, be fined” or
“imprisoned not more than ten years, or both.” 8 U.S.C. § 1324(B)(i). However,
§ 1324 also creates a safe harbor from prosecution persons and bona fide religious
organizations who “encourage, invite, call, allow, or enable an alien who is present
in the United States” to “perform the vocation of minister or missionary.”
Id. § 1324(a)(1)(C).
Section 1324 authorizes both state and local law enforcement officers
to make arrests for § 1324 violations; however, prosecution is exclusively a federal
prerogative with prosecution and interpretation of the federal law handled by the
federal courts. 8 U.S.C. § 1324(c). The provisions of § 1324 pertaining to
harboring and transporting undocumented aliens are part of a larger statutory
scheme, comprehensively addressing the actions of third parties in aiding and
assisting undocumented aliens. See Immigration and Nationality Act (“INA”), 8
U.S.C. § 1101 et seq. Other provisions in the statutory scheme penalize persons
unlawfully bringing aliens into the United States, 8 U.S.C. § 1323(a), and persons
who import for immoral purposes, id. § 1328.
Plaintiffs’ field preemption challenge to a state’s harboring statute is
not novel. Several circuit courts have addressed similar state and city harboring
provisions in recent years. In United States v. South Carolina, the Fourth Circuit
determined that a state harboring and transporting statute was “field preempted
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because the vast array of federal laws and regulations on this subject . . . is ‘so
pervasive . . . that Congress left no room for the States to supplement it.’” 720
F.3d 518, 531 (4th Cir. 2013) (quoting Arizona, 132 S.Ct. at 2501). The Fourth
Circuit held that “[t]he federal government has clearly occupied the field of
regulating the concealing, harboring, and transporting of unlawfully present
aliens.” Id.
The Eleventh Circuit has also addressed similar state harboring
statutes. In considering Georgia and Alabama’s harboring statutes, the Eleventh
Circuit held that “Congress has provided ‘a full set of standards’ to govern the
unlawful transport and movement of aliens. The INA comprehensively addresses
criminal penalties for these actions undertaken within the borders of the United
States, and a state’s attempt to intrude into this area is prohibited because Congress
has adopted a calibrated framework within the INA to address this issue.”
GLAHR, 691 F.3d 1250, 1264 (11th Cir. 2012); United States v. Alabama, 691
F.3d 1269, 1286 (11th Cir. 2012), cert. denied, __U.S.__, 133 S.Ct. 2022, 185
L.Ed. 2d 905 (2013).
The Third Circuit has held that a city’s ordinance making it unlawful
for a person or business that owns a “dwelling unit” to harbor an illegal alien in the
dwelling unit is field preempted by § 1324. Lozano v. City of Hazleton, 724 F.3d
297, 315 (3rd Cir. 2013), cert. denied __U.S.__, 134 S.Ct. 1491, 188 L.Ed. 2d 375
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(2014). The Court determined that “[t]he INA’s comprehensive scheme plainly
precludes state efforts, whether harmonious or conflicting, to regulate residence in
this country based on immigration status.” Id. (quotation omitted). The Third
Circuit ultimately ruled that the ordinance’s housing provisions were “an
impermissible regulation of immigration and [were] field preempted because they
intrude[d] on the regulation of residency and presence of aliens in the United States
and the occupied field of alien harboring.” Id. at 317.
The Ninth Circuit has also addressed the issue. In a challenge to
Arizona’s state alien harboring statute, the Ninth Circuit held that “the current
version of § 1324 ‘now presents a single comprehensive “definition” of the federal
crime of alien smuggling—one which tracks smuggling and related activities from
their earliest manifestations (inducing illegal entry and bringing in aliens) to
continued operation and presence within the United States (transporting and
harboring or concealing aliens).’” Valle del Sol, 732 F.3d at 1025 (quoting United
States v. Sanchez-Vargas, 878 F.2d 1163, 1169 (9th Cir. 1989)). The Court further
found that “in developing the scheme for prohibiting and penalizing the harboring
of aliens, Congress specifically considered the appropriate level of involvement for
the states,” concluding that “the inference from [§ 1324] is that the role of the
states is limited to make arrests for violations of federal law.” Id. (quoting
GLAHR, 691 F.3d at 1264).
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The Eighth Circuit also addressed a city’s ordinance making it
unlawful for any person or business or entity to rent to, or permit occupancy by,
“an illegal alien, knowing or in reckless disregard of the fact that an alien has come
to, entered, or remains in the United States in violation of the law.” Keller v. City
of Fremont, 719 F.3d 931, 938 (8th Cir. 2013), cert. denied __U.S.__, 134 S.Ct.
2140, 188 L.Ed. 2d 1125 (2014). Contrary to the rulings in the Third, Fourth,
Ninth, and Eleventh Circuits, the Eighth Circuit created a circuit split, holding that
the ordinance was not field preempted because “nothing in an anti-harboring
prohibition contained in one sub-part of one subsection of 8 U.S.C. § 1324 []
establishes a ‘framework of regulation so pervasive . . . that Congress left no room
for the States to supplement it,’ or evinces ‘a federal interest . . . so dominant that
the federal system will be assumed to preclude enforcement of state laws on the
same subject.’” Keller, 719 F.3d at 943 (quoting Arizona, 132 S.Ct. at 2501). The
Eighth Circuit reasoned its conclusion on the premise that “[t]he rental provisions
do not remove aliens from this country (or even the City), nor do they create a
parallel local process to determine an alien’s removability.” Id. at 942.
Defendants urge the Court to adopt the holding of the Eighth Circuit
and find that H.B. 11’s harboring provisions are not field preempted. Defendants
argue that H.B. 11’s harboring provisions regulate only human smuggling, not
immigration, and “[a]t most the challenged provisions indirectly impact
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unauthorized aliens residing in the State.” (Dkt. # 17 at 26–27.) Defendants also
attempt to distinguish the lines of cases in the Third, Fourth, Ninth, and Eleventh
Circuits finding field preemption, by arguing that none of the laws challenged in
those states required an actor to have “the intent to obtain pecuniary benefit,” and
that the preempted laws in those circuits “covered far more conduct . . . than the
provisions challenged here.” (Id. at 32.) Based on this, Defendants argue that
“[e]ven if there is an ‘anti-harboring field’ that Congress occupies exclusively,
H.B. 11 does not intrude upon it.” (Id. at 31.)
The Court finds the reasoning in the Third, Fourth, Ninth,
and Eleventh Circuits field preemption analysis persuasive. Upon careful
consideration of the relevant INA provisions pertaining to alien harboring,
particularly §§ 1323, 1324, 1327, and 1328, in comparison to H.B. 11’s alien
harboring provisions—sections 14(a)(2), 15(a), and 16(a)(17), it is clear that
Congress created a federal statutory scheme regarding the harboring and
transporting of undocumented aliens so pervasive that it left no room in this area
for the state of Texas to supplement it. See Gade v. Nat’l Solid Wastes Mgmt.
Ass’n, 505 U.S. 88, 98 (1992). Specifically, while Defendants argue that H.B. 11’s
harboring provisions do not sufficiently concern immigration to constitute
preemption, the Court finds that “the scheme governing the crimes associated with
the movement of unauthorized aliens in the United States,” contained within
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§ 1324 and the INA, “provides a ‘full set of standards’ designed to work as a
‘harmonious whole.’” Valle del Sol, 732 F.3d at 1024–25 (quoting Arizona, 132
S.Ct. at 2501). “A version of § 1324 has been part of our ‘extensive and complex’
federal immigration scheme for over a century.” Id. at 1025 (quoting Arizona, 132
S.Ct. at 2499). The slow evolution of § 1324 “over time demonstrates Congress’s
intentional calibration of the appropriate breadth of the law and severity of the
punishment.” Id.
Additionally, § 1324(c) expressly authorizes state and local law
enforcement to “make arrests for a violation of any provision of § 1324,”
indicating that Congress did not intend states to have a role beyond arresting
persons for allegedly harboring unlawful persons. See 8 U.S.C. § 1324(c); Valle
del Sol, 732 F.3d at 1025. Furthermore, regulation of the harboring of illegal
aliens is not an area that is traditionally regulated by a state. Cf. Ga. Latino
Alliance for Human Rights v. Deal, 793 F. Supp. 2d 1317, 1336 (N.D. Ga. 2011)
(“[U]nlike concurrent state and federal regulations in other areas, the movement of
unauthorized aliens is not a traditional area of state regulation.”).
And, contrary to Defendants’ contention that H.B. 11’s harboring
provisions concern only human smuggling and trafficking, whether H.B. 11’s
harboring provisions are labelled “anti-smuggling” or anti-harboring” is without
distinction—the conduct the harboring provisions are attempting to regulate is the
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same, and that conduct is field preempted by the INA. Furthermore, Defendants’
arguments against field preemption are not sufficiently distinct from the rulings of
the courts in the Third, Fourth, Ninth, and Eleventh Circuits. Defendants contend
that none of the challenged laws in those circuits required an actor to have “the
intent to obtain a pecuniary benefit,” and that the challenged laws “covered far
more conduct” than section 14(a)(2) of H.B. 11. (Dkt. # 17 at 32.) These
distinctions are without merit. As the Fourth Circuit recognized, “where the
federal government, in the exercise of its superior authority in this field, has
enacted a complete scheme of regulation . . . states cannot, inconsistently with the
purpose of Congress, conflict or interfere with, curtail or complement, the federal
law, or enforce additional or auxiliary regulations.” South Carolina, 720 F.3d at
531 (quoting Hines, 312 U.S. at 66–67). Because H.B. 11’s harboring provisions
do just that, the Court finds Plaintiffs’ are likely to succeed on the merits of their
field preemption claim.
2.

Conflict Preemption

Even if H.B. 11’s harboring provisions are not field preempted, they
are likely conflict preempted. Plaintiffs contend that H.B. 11’s harboring
provisions conflict with federal law because (1) they relocate decision-making
from federal actors to state actors; (2) they impose inconsistent and greater

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penalties than § 1324; and (3) they widen § 1324 in certain aspects and narrows it
in other aspects. (Dkt. # 4 at 19–21.)
a.

Decision-Making

Plaintiffs first argue that section 14(a)(2) conflicts with federal alien
harboring law by relocating decision-making from federal actors to state actors.
(Dkt. # 4 at 19.) Plaintiffs contend that under section 14(a)(2), state judges—and
not federal judges—would make the determination of whether an individual
“enter[ed] or remain[ed] in this country in violation of federal law.” (Id.) Because
a state court judge’s interpretation of section 14(a)(2) might depart from a federal
judge’s interpretation of § 1324, Plaintiffs argue that a conflict exists between state
and federal jurisdictions that would frustrate federal policy. (Id.)
Defendants respond that H.B. 11’s harboring provisions do not
regulate unauthorized aliens or immigration generally, but instead target human
trafficking, which is an area of state law that is expressly not preempted by any
federal law. (Dkt. # 17 at 33.) In such case, Defendants argue that there can be no
relocation of decision-making from federal to state authorities and therefore no
basis for a finding of conflict preemption. (Id.) Defendants further contend that
the provisions do not empower any state official to act as an immigration officer or
grant them any power to classify non-citizens; instead, they argue that the
provisions allow the State to enforce its human smuggling law and concurrently
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allow federal officials to enforce parallel federal laws on the same subject. (Id. at
34.)
In 2013, the Fifth Circuit ruled that a city’s ordinance criminalizing
renting an apartment to a non-citizen “not lawfully present in the United States”
was conflict preempted by § 1324. Farmers Branch, 726 F.3d at 529. The Court
determined that “‘the significant complexities involved in enforcing federal
immigration law, including the determination whether a person is removable,’
reinforce the importance of the federal government’s supervisory role over the
limited contexts, including harboring, where the Attorney General has delegated
arrest authority to state officers.” Id. at 531 (quoting Arizona, 132 S.Ct. at 2506).
In making its ruling, the Fifth Circuit considered the ordinance’s prohibition
compared to the “analogous crime of transporting certain non-citizens, [where] the
“aliens’ status is an element of the crime.” Id. (quoting United States v. AlvaradoMachado, 867 F.2d 209, 212 (5th Cir. 1989)). The Fifth Circuit ultimately
concluded that “by criminalizing conduct that does not have the effect of evading
federal detection, and by giving state officials authority to act as immigration
officers outside the ‘limited circumstances’ specified by federal law, the Ordinance
‘interfere[s] with the careful balance struck by Congress’ with respect to the
harboring of non-citizens here contrary to law.” Id. (citing Arizona, 132 S.Ct. at
2505–06; Crosby v. Foreign Nat’l Trade Council, 530 U.S. 363, 367 (5th Cir.
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2000); Odebrecht Constr., Inc. v. Sec’y Fla. Dep’t of Transp., 715 F.3d 1268,
1282–83 (11th Cir. 2013)).
The Fifth’s Circuit ruling in Farmers Branch is instructive. Here,
while the State suggests the target in enacting H.B. 11’s harboring provisions
focuses on persons who smuggle and traffic unauthorized aliens, the effects of the
provisions result in an underlying determination of whether a person has “enter[ed]
or remain[s] in this country in violation of federal law.” H.B. 11 § 14(a)(2). “The
federal government alone, however, has the power to classify non-citizens.”
Farmers Branch, 726 F.3d at 536. Accordingly, allowing a state official to
preliminarily “assess the legality of a non-citizens presence absent a ‘preclusive’
federal determination, open[s] the door to conflicting state and federal rulings on
the question.” Id. Furthermore, Plaintiffs “‘could be unnecessary[ily] harass[ed]’
and prosecuted under a law like that here, including individuals ‘whom federal
officials determine should not be removed.’” Id. at 546 (Dennis, J. concurring); cf.
Arizona, 132 S. Ct. at 2505 (“As a general rule, it is not a crime for a removable
alien to remain present in the United States.”).
Overall, the enforcement scheme of H.B. 11’s harboring provisions
“turns on determinations of whether a noncitizen tenant is or is not ‘lawfully
present in the United States, a blunt binary classification that is inconsistent with
the extensive array of immigration status provided under federal law and with the
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complex, often discretionary processes by which the federal government enforces
and adjudicates immigration law.” Farmers Branch, 726 F.3d at 547 (Dennis, J.
concurring). Furthermore, contrary to Defendants’ contention, the Court does not
find that state and local law enforcement of H.B. 11’s harboring provisions could
operate concurrently with “parallel federal laws on the same subject” and thereby
avoid conflict preemption. (See Dkt. # 17 at 34.) Accordingly, Plaintiffs have
shown a likelihood of success on the merits for their first argument regarding
conflict preemption.8
b.

Penalties

Plaintiffs further contend that H.B. 11’s harboring provisions conflict
with federal law because they impose inconsistent and often greater penalties upon
violators that federal law does not impose. (Dkt. # 4 at 20.) Plaintiffs argue that,
for instance, H.B. 11’s harboring provisions mandate a minimum prison term, but
that federal law does not. (Id.) Plaintiffs further contend that the state and federal
laws escalate penalties differently based on different aggravating factors. (Id. at
20–21.)

8

It is clear that by labeling H.B. 11’s harboring provisions as anti-human
trafficking provisions, Defendants attempt to isolate them from the broad realm of
federal immigration law. The Court however must look to the substance and not
merely the label of the law in question. It is clear that the reach of H.B. 11’s
harboring provisions is far broader than mere human trafficking and it overlaps and
intrudes upon the federal immigration laws.
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In response, Defendants assert that an imposition of additional
penalties does not provide a basis for conflict preemption. (Dkt. # 17 at 35.)
Defendants further contend that Plaintiffs have not demonstrated that any
differences in penalties will pose a physical impossibility or create an obstacle to
federal objectives. (Id.) Last, Defendants argue that Plaintiffs ignore the fact that
the State is imposing penalties for conduct proscribed by state law, and not
imposing penalties for a federal offense. (Id.)
The Supreme Court has cautioned that “‘conflict is imminent’ when
‘two separate remedies are brought to bear on the same activity.’” Farmers
Branch, 726 F.3d at 529 (quoting Crosby, 530 U.S. at 372). In this case,
§ 1324(a)(1)(B)(ii) states that a person who violates the federal alien harboring law
shall not be imprisoned more than five years, and § 1324(a)(1)(B)(i) provides that
a person who violates the harboring law for “the purpose of commercial advantage
or financial gain” shall be imprisoned for not more than ten years. 8 U.S.C.
§§ 1324(a)(1)(B)(ii), 1324(a)(1)(B)(i). By contrast, H.B. 11 § 14(b) provides that
the state offense of harboring an alien will result in punishment of a felony of the
third degree, constituting a prison term of two to ten years. See Tex. Pen. Code
§ 12.34. The punishments for violations of the state harboring provision are
therefore inconsistent with the violations of the federal harboring law condemning
the same conduct. Such inconsistency “intru[des] upon the federal scheme . . . and
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creates a conflict with the plan Congress put in place.” Arizona, 132 S.Ct. at 2503
(recognizing inconsistency in federal and state sanctions for failure to carry
registration papers) (citing Wis. Dep’t of Indus. v. Gould Inc., 475 U.S. 282, 288–
89 (1986)); see Valle del Sol, 732 F.3d at 1027 (“[T]he provision of additional and
different state penalties under [Arizona’s statute] for harboring unauthorized aliens
disrupts ‘the congressional calibration of force.’” (quoting Crosby, 530 U.S. at
380)); GLAHR, 691 F.3d at 1267 (“The end result of section 7 is to layer
additional penalties atop federal law in direct opposition to the Court’s discretion
in Crosby.”). In such case, Plaintiffs are also likely to succeed on the merits for
this contention.
c.

Widening and Narrowing of Scope

Plaintiffs also argue that H.B. 11’s harboring provisions are conflict
preempted because they both widen and narrow the scope of the federal offense of
alien harboring. (Dkt. # 4 at 21.) Specifically, Plaintiffs allege that § 1324
exempts ministers and missionaries of religious organizations from prosecution,
but that H.B. 11 § 14 does not contain such an exemption. (Id.) Plaintiffs further
contend that H.B. 11 § 14 provides as an affirmative defense that the harbored
undocumented alien is a relative within the second degree of consanguinity or
affinity of the alleged violator, but that § 1324 does not provide such a defense.

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(Id.) Because of these actual conflicts in the two statutes, Plaintiffs contend that
H.B. 11’s harboring provisions are preempted. (Id.)
Defendants, on the other hand, argue that Plaintiffs’ identified
differences in the state and federal statutes are insufficient to establish conflict
preemption. (Dkt. # 17 at 36.) First, Defendants argue that the amended language
to H.B. 11 § 14—“with the intent obtain a pecuniary benefit”—specifically
exempts religious and charitable organizations from prosecution. (Id.) Second,
Defendants assert that a small difference in the state and federal harboring laws,
such as the state law affirmative defense relating to familial relationship, is only a
mere difference that does not result in conflict preemption because it does not
make compliance with both laws impossible. (Id.)
As addressed above in the standing discussion, Plaintiffs all have a
realistic threat of prosecution under H.B. 11’s harboring provisions. Because the
State law does not have a religious or other similar charitable exemption to
prosecution for harboring aliens, Plaintiffs “could be prosecuted for conduct that
Congress specifically sought to protect through the exemption.” Valle del Sol, 732
F.3d at 1028. “By seeking to punish conduct that Congress chose not to punish,
the [State] statute clearly poses an obstacle to the accomplishment of the ‘full
purposes and objectives of Congress,” one of which was to protect certain religious
activities from prosecution.” Id. (quoting Arizona, 132 S.Ct. at 2501).
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With regard to the familial relationship affirmative defense in H.B. 11
§ 14(c), this language conflicts with § 1324. “A local regulation may not—though
it may share a common goal with federal law—interfere with Congress’s chosen
methods.” Farmers Branch, Tex., 701 F. Supp. 2d at 857, aff’d, 726 F.3d at 524
(citing Chamber of Commerce v. Edmondson, 594 F.3d 742, 766–67 (10th Cir.
2010)).
Accordingly, the Court finds that Plaintiffs are likely to succeed on
the merits of their arguments that H.B. 11’s harboring provisions are conflict
preempted by federal law.
D.

Fourteenth Amendment
Plaintiffs complaint also includes claims that H.B. 11’s harboring

provisions violate the Due Process and Equal Protection Clauses of the Fourteenth
Amendment. (Dkt. # 9 at 16.)
1.

Due Process

Plaintiffs’ amended complaint alleges that H.B. 11’s harboring
provisions are void for vagueness in violation of the Due Process Clause of the
Fourteenth Amendment. (Dkt. # 9 at 16.) “‘Objections to vagueness under the
Due Process Clause rest on the lack of notice and hence may be overcome in any
specific case where reasonable persons would know that their conduct is at risk.’”

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United States v. Clark, 582 F.3d 607, 613 (5th Cir. 2009) (quoting Maynard v.
Cartwright, 486 U.S. 356, 361 (1988)).
The facial validity of a statute is a question of law. Vill. of Hoffman
Estates, Inc. v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494–95 (1982); Ctr.
for Individual Freedom v. Carmouche, 449 F.3d 655, 662 (5th Cir. 2006). The first
step in evaluating the statute’s validity is an over-breadth analysis, which
determines whether the statute reaches a “substantial amount of protected
conduct.” Clark, 582 F.3d at 612. If it is not overbroad, then the Court must
“examine the facial vagueness challenge and, if the enactment implicates no
constitutionally protected conduct, [the Court] should uphold the challenge only if
the enactment is impermissibly vague in all of its applications.” Hoffman, 455
U.S. at 494–95.
Plaintiff does not dispute whether H.B. 11’s harboring provisions are
overbroad. See Clark, 582 F.3d at 612 (“[T]he overbreadth doctrine is applicable
only to First Amendment challenges.”). Instead, Plaintiffs challenge whether H.B.
11’s harboring provisions are impermissibly vague. A statute is vague if people of
“common intelligence must necessarily guess at its meaning.” Coates v. City of
Cincinnati, 402 U.S. 611, 614 (1971). The Fifth Circuit has emphasized that a
statute is not unconstitutional unless it is “impermissibly vague in all its
applications, including its application to the party bringing the vagueness
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challenge.” Clark, 582 F.3d at 612. If a reasonable person would know his
conduct was covered by the statute, then there has been no failure of notice to that
individual. See Maynard, 486 U.S. at 361.
In light of this framework, the Court is required to examine the actual
application of H.B. 11’s harboring provisions in this case before engaging in
speculation about how the provisions might be applied to other individuals and
organizations. See Roark & Hardee, 522 F.3d at 546. If Plaintiffs’ conduct is
clearly covered under H.B. 11’s harboring provisions, then Plaintiffs cannot
complain as to how others may be affected by the provisions’ vagueness. Id.
Additionally, if constitutionally protected conduct is not threatened and the
provisions clearly apply to Plaintiffs, then it cannot be void for vagueness. Clark,
582 F.3d at 613.
The Court finds that Plaintiffs’ claim that H.B. 11’s harboring
provisions are void for vagueness fails under the framework discussed above. The
facts alleged in the amended complaint do not allege that H.B. 11 § 14(a)(2) is
vague as applied to Plaintiffs. In fact, the pleadings allege that the provisions
apply to them, and that they “fear imminent prosecution under H.B. 11,” for their
conduct as specified in the wording of H.B. 11 § 14(a)(2). (Dkt. # 9 at 15.) Such
conduct lies at the heart of Plaintiffs’ case. Furthermore, the federal anti-harboring
law upon which Plaintiff’s rely for their preemption claim, § 1324, contains similar
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terms as the ones Plaintiffs challenge; however, §1324 has withstood various
vagueness challenges. See, e.g., Banderas-Aguirre v. United States, 474 F.2d 985,
986 (5th Cir. 1973) (“This Court, as well as other Circuit Courts, have previously
ruled that § 1324 is not unconstitutionally vague.”). Accordingly, Plaintiffs have
failed to state a claim upon which relief may be granted for their due process
claim.
2.

Equal Protection

The Equal Protection Clause of the Fourteenth Amendment
commands that no State shall “deny to any person within its jurisdiction the equal
protection of the laws.” U.S. Const. amend. XIV. The basis of an equal protection
claim therefore is the requirement that all persons similarly situated should be
treated alike. City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439
(1989); Plyler v. Doe, 457 U.S. 202, 216 (1982); Piotrowski v. City of Houston,
237 F.3d 567, 578 n.15 (5th Cir. 2001).
In analyzing an equal protection challenge, strict scrutiny is
appropriate “only where a government classification implicates a suspect class or a
fundamental right.” Rubee v. Fleming, 160 F.3d 213, 217 (5th Cir. 1998); see City
of Cleburne, 473 U.S. at 440 (holding “when a statute classifies by race, alienage,
or national origin” the law is subject to strict scrutiny). Otherwise, an equal
protection analysis requires only “that the classification be rationally related to a
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legitimate state interest.” Cornerstone Christian Sch. v. Univ. Interscholastic
League, 563 F.3d 127, 139 (5th Cir. 2009).
Defendants move to dismiss Plaintiffs’ equal protection claim on the
basis that they fail to identify any equally situated individuals or entities that are
being treated differently. (Dkt. # 16 at 38.) Defendants argue that H.B. 11’s
harboring provisions treat Plaintiffs the same as anyone who acts “with the intent
to obtain a pecuniary benefit.” (Id.) In any case, because Plaintiffs challenge to
H.B. 11 does not include any interference with a fundamental right or
discrimination against a suspect class, Defendants assert that the challenged
provisions are valid and should be sustained as rationally related to a legitimate
state interest. (Id. at 38–39.)
Plaintiffs, in their response to the motion to dismiss, contend that the
amended complaint asserts a proper equal protection claim because H.B. 11’s
harboring provisions criminalize those organizations and individuals who harbor or
shelter undocumented aliens “for pecuniary benefit,” but not those organizations
and individuals who gain no pecuniary benefit from the same conduct. (Dkt. # 221 at 35.) Because the organizations and individuals are similarly situated, but
treated differently on the basis of whether they gain a pecuniary benefit from their
conduct, Plaintiffs contend that H.B. 11’s harboring provisions violate the Equal
Protection Clause. (Id.) Plaintiffs argue “there is no rational relationship between
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the State’s proffered crime-fighting goals in enacting H.B. 11’s harboring
provisions and the disparate treatment of certain shelterers.” (Id. at 36.)
As an initial matter, Plaintiffs do not argue that H.B. 11’s harboring
provisions implicate a fundamental right or a suspect class. As such, Plaintiff’s
constitutional challenge is subject only to a rational basis standard: to be
permissible, the disparate treatment alleged must merely further a “legitimate state
interest.” Mass. Bd. of Ret. v. Murgia, 427 U.S. 307, 312 (1976). In applying the
rational basis test at the motion to dismiss stage, a court may go beyond the
pleadings to hypothesize a legitimate governmental purpose. Mahone v. Addicks
Util. Dist. of Harris Cty., 836 F.2d 921, 936 (5th Cir. 1988). However, “the
rational relationship must be real.” Id. at 937. “The appropriateness of looking
beyond the pleadings to perform a rational relationship analysis” depends on
(1) “the specific facts pleaded by the plaintiff[,]” (2) “the state of knowledge of the
court making the analysis[,]” and (3) “the complexity of the official action which is
being challenged.” Id.
The Court finds that a rational basis review at the motion to dismiss
stage is appropriate in this case. In conducting the rational basis review, the Court
acknowledges that legislation such as H.B. 11, “that does not employ suspect
classifications or impinge on fundamental rights must be upheld against an equal
protection attack when the legislative means are rationally related to a legitimate
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governmental purpose.” Hodel v. Indiana, 452 U.S. 314, 331 (1981). Such laws
carry a “presumption of rationality that can only be overcome by a clear showing
of arbitrariness and irrationality.” Id. at 331.
In this case, despite being likely preempted by federal law, H.B. 11’s
harboring provisions are rationally related to their stated purpose of
“strengthen[ing] the State’s border security measures and help[ing to] stem the
rising tide of human smuggling and human trafficking in Texas” by targeting
“folks that are engaging in smuggling for financial gain.” (See Dkt. # 16 at 10;
Dkt. # 17-14 at 78.) Because of the substantial deference afforded to governmental
actions in a rational basis review, the Court finds that these purposes are both
rational and legitimate, and that Plaintiffs have failed to state a violation of their
equal protection rights. Accordingly, Plaintiffs have failed to state a claim upon
which relief may be granted for their equal protection claim.
E.

Equitable Factors
“A plaintiff seeking a preliminary injunction must establish that he is

likely to succeed on the merits, that he is likely to suffer irreparable harm in the
absence of a preliminary relief, that the balance of equities tips in his favor, and
that an injunction is in the public interest.” Winter v. Nat. Res. Defense Council,
Inc., 555 U.S. 7, 20 (2008). A preliminary injunction is especially appropriate
where, as here, it would “preserve the status quo and prevent allegedly irreparable
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injury until the court had the opportunity to decide whether to issue a permanent
injunction.” Schiavo ex rel. Schindler v. Schiavo, 403 F.3d 1261, 1262 (11th Cir.
2005) (quotation omitted).
Based on the foregoing, Plaintiffs are likely to succeed on the merits
of their Supremacy Clause claim. Therefore, the Court must next determine
whether Plaintiffs are likely to suffer irreparable harm. “[A]n alleged constitutional
infringement will often alone constitute irreparable harm.” United States v.
Arizona, 641 F.3d at 366; see also Deerfield Med. Ctr. v. City of Deerfield Beach,
661 F.2d 328, 338 (5th Cir. Unit B 1981); Valle del Sol, 732 F.3d at 1029;
GLAHR, 691 F.3d at 1269; Arizona, 641 F.3d at 366. In this case, Plaintiffs risk
subjection to criminal penalties under laws that might be preempted by federal law
and the Supremacy Clause of the United States Constitution. Thus, the Court finds
that Plaintiffs are likely to suffer irreparable harm.
The balance of equities in this case also favors Plaintiffs. Any burden
to Defendants would be minimal, and an injunction which preserves the status quo
would not impose any further burdens on Defendants. In contrast, the burden on
Plaintiffs would be great as they possibly face irreparable harm if H.B. 11’s
harboring provisions continue to be enforced.

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Finally, “‘it is clear that it would not be equitable or in the
public’s interest to allow the state . . . to violate the requirements of federal law,
especially when there are no adequate remedies available.’” Valle del Sol, 732
F.3d at 1029 (quoting Arizona, 641 F.3d at 366). Therefore, it is clear that the
public interest weighs in favor of issuing a preliminary injunction.
Accordingly, the Court finds that a preliminary injunction is proper.
The enforcement of H.B. 11 § 14(a)(2), and §§ 15(a), and 16(a)(17)9 to the extent
they incorporate section 14(a)(2), are preliminarily enjoined. State and local law
enforcement officers and officials at all levels have no authorization to investigate,
search, seize, arrest, detain, or prosecute anyone based upon sections 14(a)(2),
15(a), and (16)(a)(17) of H.B. 11 while this injunction remains in effect.
V.

Conclusion
Based on the foregoing, the Court GRANTS Plaintiffs’ Motion for

Preliminary Injunction (Dkt. # 3), and GRANTS IN PART and DENIES IN
PART Defendants’ Motion to Dismiss (Dkt. # 16).

9

These sections are codified as amended in Tex. Penal Code §§ 20.05, 20.06,
71.02(a).
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IT IS SO ORDERED.
DATED: San Antonio, Texas, April 14, 2016.

_____________________________________
David Alan Ezra
Senior United States Distict Judge

58