Federal district Judge Janis Jack has pushed the State of Texas for many years to fix the Dickensian meat grinder that is the state’s foster care system. Her Corpus Christi courtroom had become that rare venue in Texas, one where powerful officials charged with taking care of some of the state’s most vulnerable citizens were subject to relentless, clear-eyed accountability. For some the spotlight has been intolerable.
Last week, a three-judge panel of the right-wing Fifth Circuit Court of Appeals ruled in favor of Governor Greg Abbott and two of his appointees, removing Jack from the case and tossing out contempt charges she had levied against state officials for not bringing the system up to constitutional muster. The judges, Edith Brown Clement, Edith Jones, and Cory Wilson, scolded Jack for showing too much favor toward the plaintiffs—that is, the foster children. Jack, the Fifth Circuit concluded, had gone too far. “The state has been under constant, intrusive, and costly surveillance by a team of monitors and the district court” for more than a decade, they wrote. Some $150 million had been spent on compliance alone, and the judge was now even threatening receivership to put parts of the system under federal control. Enough was enough.
Attorneys for the child plaintiffs are appealing to the full Fifth Circuit, but even if they prevail, the remarkable ruling—and the cozy web of gilded career paths that tie together Abbott, Texas Attorney General Ken Paxton, and many of the Fifth Circuit judges—says a lot about how power functions in Texas. When you pit foster kids against right-wing political and legal elites, what happens?
The trouble began, as it often does, with our state government letting one of its social safety nets deteriorate to the point of crisis. By 2011, when a group of children in long-term care sued Texas, the foster care system was widely understood to be barbaric, a threadbare apparatus that children were lucky to survive without being beaten, drugged, raped, or otherwise traumatized. Despite then-Governor Rick Perry ordering an overhaul of the system and an injection of cash by the Legislature, kids were still sleeping on the floors of state office buildings and abuses were still rampant. The suit landed with Jack, a Clinton appointee with a Texas-size bouffant of frizzled hair and a plainspoken demeanor.
In a landmark 2015 ruling, Jack found that the dysfunctional foster care apparatus unconstitutionally harmed the kids it was meant to serve. She wrote that “rape, abuse, psychotropic medication, and instability are the norm.” State investigators allowed horrific abuses to go unchecked. Caseworkers were overwhelmed and underpaid. Indifference seemed to be a feature of the system, not a bug. She ordered sweeping reforms—66 measures in all, including timely and robust investigations of abuse allegations and attentive oversight of group homes that had demonstrated a pattern of problems. At Jack’s behest, Texas hired two monitors to function as watchdogs over the agencies in charge of the system.
For the past five years, Jack has held countless hearings to track progress, hauling up executives from the Texas Health and Human Services Commission and the Department of Family Protective Services to answer for both successes and shortcomings. In December 2020 Abbott instructed the heads of the two agencies to “fully comply” with Jack’s orders.
Caseloads significantly dropped, investigations became more prompt, and fewer children were trapped in hellacious situations. Still, the monitors found persistent, egregious violations in the ways the state was conducting investigations. Over time, Jack seemed to become increasingly exasperated by the slow pace of progress. In April she slapped the state with contempt charges for the third time, imposing $100,000-a-day fines until the problems were fixed. Whether she meant to or not, Jack had picked a fight.
Lawyers for the state asked the Fifth Circuit—the nation’s most right-wing appellate court—to put a stop to Jack’s oversight. And these weren’t just any attorneys. In 2023 Abbott appeared to have abandoned his previous position that the state should comply with Jack’s order. Instead, he secured $6 million from the Legislature to hire five $1,300-an-hour private lawyers from megafirm Gibson Dunn to work alongside Attorney General Ken Paxton’s defense team. Notably, four of the five had clerked for Fifth Circuit judges, including Allyson Ho, who is also the wife of justice James Ho, a Donald Trump appointee known for writing unusually partisan and intemperate judicial opinions. (James Ho did not serve on the three-judge panel that booted Jack, but he may choose to hear the case on appeal before the full Fifth Circuit, as federal judges are apparently allowed to decide when they should recuse themselves.)
The attorneys for the foster kids warned the court that the state was “asking for permission to keep children in danger indefinitely.” HHSC had shown “shocking dereliction” in its duties, they wrote. The state charges a unit within HHSC called Provider Investigations with the particularly delicate task of looking into allegations of abuse and neglect of about a hundred developmentally disabled children. It is responsible for kids who may be extremely vulnerable to repeated harm because they lack natural defenses and may not even be able to verbally communicate that they’re being abused. But according to the court-appointed monitors, Provider Investigations frequently showed an “utter disregard for children’s safety.” Investigators didn’t interview children promptly, or sometimes at all, after alleged physical or sexual abuse. Reports often took a year or longer to complete, leaving disabled kids “exposed to danger that in certain instances caused them terrible suffering and harm.”
The court record abounds with disturbing accounts. One of the worst involves “Child C,” a fourteen-year-old mostly nonverbal girl with an IQ of 55. During the year Child C spent at C3 Christian Academy in Grand Prairie, a group home in the Dallas–Fort Worth area, she was shocked with a Taser, sexually abused, and hit so hard by a staff member that her jaw was broken in two places. A C3 employee dropped her off at a hospital the next day. She ran away from the home and twice attempted to hang herself with a sheet tied around her neck. She communicated to police that she was frequently punched. Despite twelve investigations into this abuse over the course of a year, HHSC employees missed warning sign after warning sign. A cop who was called to C3 noted that an employee of the group home—out on bond for felony stalking—was wearing an ankle monitor. One investigator dryly noted in a report, “It is a concern that the agency is employing registered sex offenders.”
(A spokesperson for HHSC declined an interview but sent a statement celebrating the Fifth Circuit’s ruling for “recogniz[ing] the significant efforts DFPS and HHSC have invested in serving the children and families of our state.”)
The Fifth Circuit panel was unmoved by cases such as that of Child C. The number of “violations,” it noted, was “on a very small scale in relation to the magnitude of the institution,” which serves more than 20,000 children statewide. The state had made significant progress in its reforms, and therefore Jack was out of bounds in finding it in contempt of her orders. Moreover, the appeals panel members wrote, Jack “repeatedly exhibits a highly antagonistic demeanor toward the Defendants.”
In page after page of the ruling, the three judges catalog her “caustic remarks.” Jack had mused aloud to Erwin Young and Stephanie Muth, the commissioners of HHSC and DFPS, respectively, “I don’t know how you all sleep nights.” She asked the two officials if they had “ever seen the inside of a jail cell.” She had shown “emotion,” at one point pausing a hearing after she became distressed by a state-employed doctor’s unwillingness to say that properly calibrating psychotropic medication was his job. She had joked about ordering the $1,300-an-hour Gibson Dunn lawyers to stay at one of the gruesome group homes where children are routinely physically and sexually assaulted. She wondered aloud to Allyson Ho, who did not respond to an interview request, whether she was “waiting for me to issue some order that you think you can take immediately up to the Fifth Circuit and get rid of heightened monitoring or get rid of this or get rid of that.”
In other words, Jack talked to powerful officials in a way they were unaccustomed to. In all this, the appellate judges found evidence of bias. Jack had become too sympathetic to the kids.
Paul Yetter, the lead attorney for the plaintiff children, says the Fifth Circuit conducted a selective reading of a voluminous ten-year record since trial. Jack, he says, frequently praises the state’s progress and thanks caseworkers for their efforts. But over time, she has lost patience with the executives at DFPS and HHSC. “She got very frustrated that the officials that were supposed to be in charge of the reform efforts literally didn’t know what was happening with the children or how best to correct the problems.” If she showed compassion for terribly abused children, it was a function of common decency, Yetter said. “I don’t think any human being, whether it’s a judge or not, could be dispassionate about what’s going on with these children. By the same token, what she’s done in the last five years is simply carry out the orders of reform and make sure that they are being done and that progress is being made.”
In this light, what’s strange is the Fifth Circuit’s misplaced compassion—not for the vulnerable plaintiff children but for the defendants and their lawyers. It’s probably not a coincidence that Abbott stocked his legal team with attorneys close to the appellate judges and Texas’s Republican elite. Consider the pedigree of one of the Gibson Dunn attorneys, Prerak Shah, who did not respond to a request for an interview. In 2010, fresh out of law school, he clerked for Fifth Circuit Judge Jerry Smith, a Ronald Reagan appointee. Shah later served as senior counsel for Paxton. He also worked as chief of staff to Senator Ted Cruz, helping to organize the confirmation hearings for Supreme Court Justices Neil Gorsuch and Brett Kavanaugh. (Cruz, of course, has ties to Ho too: Cruz served as solicitor general in the early 2000s to Abbott, who was attorney general; when Cruz stepped down, he persuaded Abbott to hire his friend Ho as his replacement.)
In his bio, Shah brags that he “personally shepherded the selection, nomination, and confirmation of more than twenty federal judges in Texas, developing relationships with judges across the state.” What’s more, before Ho was confirmed to the Fifth Circuit in 2017, he worked at Gibson Dunn alongside Shah, where the two penned an op-ed together about the unfairness of Rick Perry’s criminal indictment for abuse of office.
The coziness of this elite clique was made apparent in 2018 at Ho’s swearing-in ceremony at the palatial Dallas estate of Harlan Crow—the billionaire who secretly lavished Supreme Court Justice Clarence Thomas with gifts and travel and purchased properties from him, including a house occupied by Thomas’s mother. Thomas led the ceremony while Cruz, Allyson Ho, and Smith, looked on, a giant Xanadu-size fireplace yawning behind them.
James Ho has played a part in bringing Jack to heel. In 2020 he wrote one of several opinions rebuking the judge for requiring the state to seek permission before moving children from homes with 24-hour supervision—an apparent violation of previous Fifth Circuit mandates.
The Hos. The Gibson Dunn attorneys. Greg Abbott. Ted Cruz. Ken Paxton. These are powerful legal and political figures whose personal and professional lives are deeply entangled. You might even say they are biased toward one another. Viewed from this angle, the state’s complaint to its friends on the Fifth Circuit looks less like a legal feint than a disgruntled manager running to his buddies in HR.
Younger readers might be surprised to learn that there was a time in Texas when courtrooms encouraged reform and dispensed justice. William Wayne Justice (what a name!), appointed by President Lyndon B. Johnson to the federal judiciary in 1968, ordered East Texas schools to be desegregated. A decade later, after a yearlong trial, Justice ruled that conditions in the state’s prisons system constituted cruel and unusual punishment under the Constitution, leading to significant court-supervised improvements.
Justice was a progressive Democrat, resisted by conservative state leaders at every turn, but the Texas Supreme Court, long dominated by Republicans, has also played a part in reform. Five times in the past four decades, the court has found Texas’s school finance system to be unconstitutional. These rulings forced the Legislature to make public schools more equitable and better funded. Critics can reasonably object that these sweeping actions from the bench smack of judicial activism. But today’s courts are no less activist; they’re just not acting on behalf of racial minorities, schoolkids, or prisoners.
Yetter is hopeful that even if the foster kids lose their appeal, the new district judge appointed to the case will keep enforcing the reforms that Jack instituted. But regardless, the State of Texas and its allies on the Fifth Circuit have sent a loud message: This is our state; you’re just living in it.
