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On October 24, 2023, Texas sued the Biden Administration to stop Custom and Border Protection agents from cutting concertina wire (aka “razor wire”) that the State has been installing as a border barrier. Like the large buoys Texas previously put in the Rio Grande, the razor wire is part of Texas’ “Operation Lone Star,” which seeks to deter migration to the state through dangerous border barriers, criminalization and deportation. Texas’s complaint alleges that the federal government has a policy or practice of cutting the razor wire and that doing so is illegal because it amounts to unlawful destruction of private property (the razor wire itself) that is not authorized by federal law, and that the alleged policy did not go through required procedures.

Texas filed this case in the Del Rio division of the Western District of Texas, where there is a 100% chance it would be assigned to Chief Judge Alia Moses. 

On the same day it filed suit, Texas also filed a motion for a preliminary injunction, requesting that the court block the alleged policy of cutting razor wire while the case proceeds to final judgment. Briefing on that motion is ongoing. 

On October 27, Texas filed a motion for a temporary restraining order (TRO) to enjoin (block) the federal government from continuing the alleged policy or practice of cutting the razor wire until the court could rule on Texas’s preliminary injunction motion. On October 30, Judge Moses granted Texas’s request for a TRO until November 13, but noted an exception in the order to permit the federal government to move or cut the razor wire fencing to aid individuals in the event of medical emergencies. Judge Moses set a preliminary injunction hearing in the case for November 7, 2023.

On November 9, Judge Moses issued an order extending the TRO beyond November 13 for 14 more days to allow the court more time to consider the parties’ arguments and evidence regarding the preliminary injunction motion. Judge Moses also ordered that a second preliminary injunction hearing be held to discuss all remaining issues, which will be held on November 27, 2023.

Technical Summary

Texas's complaint alleges six claims regarding the alleged policy of destroying the state’s razor wire. Those claims are that the policy constitutes: (1) common law conversion; (2) common law trespass; (3) final agency action unauthorized by statute; (4) an APA notice and comment violation; (5) an APA arbitrary and capricious violation; and in the alternative, (6) an ultra vires non-final agency action.


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