Fifth Circuit Removes Texas Judge Critical of Foster Care System

A federal judge who has held the state of Texas in contempt of court three times for failing to fix the state’s foster care system was removed from the case by the Fifth Circuit Friday in a major win for Gov. Greg Abbott (R).

By a 3-0 vote, a panel of judges, all Republican appointees, said Judge Janis Jack of the US District Court for the Southern District of Texas has displayed “a highly antagonistic demeanor toward” the state defendants. Jack, who has presided over the case since it began in 2011, also made several remarks implying bias during a December 2023 hearing, the panel said in the opinion.

Jack inappropriately urged and instigated lawyers representing foster care children to seek contempt against Texas, the panel said. She also repeatedly questioned the state’s unwillingness to go above and beyond the requirements set out in her remedial actions, the opinion said.

“The district judge must be removed,” the panel ordered, directing the chief judge in the district to reassign the case to another judge.

Referencing decisions from Jack that have forced Texas to spend more than $200 million to comply with her remedial orders, the panel said, “federal judges should not be personally allocating resources from the state’s taxpayers for purposes not directly tied to and controlled by the state itself in order to abide by a court decree.”

Judges Edith Clement and Cory Wilson joined the opinion from Judge Edith Jones.

The panel also ruled Texas won’t have to pay $100,000 in daily fines Jack imposed in a contempt order from April.

Paul Yetter, a lawyer from Yetter Coleman opposing the state in his representation of the foster care children, called the ruling “a sad day for Texas children.”

“For over a decade, Judge Jack pushed the state to fix its broken system,” he said in a statement. “She deserves a medal for what she’s done. We will keep fighting to ensure these children are safe.”

A spokesperson in Abbott’s office didn’t respond to a request for comment Friday.

Jack announced the six-digit fine after finding the state out of compliance with two remedial orders from her to urgently investigate allegations of abuse brought by foster care children. The fine was to continue every day the state failed to certify it had corrected the investigations. However, the state secured a stay pending an appeal and never began paying the fine. Then, in May, the appeals court put the fine on hold indefinitely, telegraphing the portion of the decision on fines that came down Friday.

The May order said violations of Jack’s remedial orders were on “a very small scale” — about three dozen across thousands of investigations during a certain period. And the order forced Texas to do the impossible by providing timely investigations in cases already past due.

Judges Jones, Clement, and Wilson presided over oral arguments on Aug. 5. There, Gibson Dunn & Crutcher LLP, the outside firm Abbott tapped to represent the state, argued the fine amounts to a criminal penalty, not a civil one. They also pushed for Jack’s removal, with Allyson N. Ho, a firm partner, making the case that Jack’s “passion and conviction” for foster care children has “clouded her ability to preside fairly and impartially” over the case.

The case is M.D. v. Abbott, 5th Cir., No. 24-40248, 10/11/24.