Texas Wins Latest Legal Fight With Border Patrol Over Razor Wire

A federal appeals court sided with Texas in its latest legal fight with the Biden administration over border security, saying US agents can’t cut down razor-wire fencing the state installed to deter people from entering the country illegally.

The dispute is part of a turf war between Texas and the Biden administration over control of a public park in Eagle Pass along the US-Mexico border. The ruling Wednesday from a split three-judge panel of the US Court of Appeals for the Fifth Circuit has the effect of reinstating an order in December from a different panel of the same court, with an update.

The majority ruling, authored by Judge Stuart Kyle Duncan, bars the US Border Patrol from cutting or removing razor wire along the Rio Grande, except for border law enforcement activities or emergencies.

However the court modified an earlier injunction to specify that the federal agency must have access to Shelby Park. The state had barred federal agents from accessing the park to conduct patrols.

Duncan’s opinion was joined by Judge Don Willet, while Judge Irma Carrillo Ramirez wrote a more than 30 page dissent. She said that Texas hasn’t met its burden to show the US waived sovereign immunity or that it’s likely to succeed on the merits.

Texas hasn’t shown that wire-cutting is a final agency action that can be subject to judicial review, she said.

The US Supreme Court vacated the Fifth Circuit’s original order granting the injunction, and the case could end up there again.

Public Park

Texas has been challenging the federal government in several lawsuits over how much authority the state has to pursue border security measures. The long-running conflict has escalated, with a surge in the number of illegal border crossings and disagreements about the appropriate response.

The US Supreme Court has long held that the federal government is responsible for shoring up the border and who can come into the country—not the states. Leaders in Texas say the federal government has failed to stem the tide of unauthorized immigrants, leaving states along the border with no choice but to act on their own.

In addition to deploying troops to the border and stringing the razor wire, Texas passed a law that would give local police the right to arrest people who illegally cross the border.

In the razor wire case, Texas sued the federal government after the state said Border Patrol agents started cutting down the fencing that the state had erected near Eagle Pass. The state says the wire deters people trying to enter the country illegally, but the federal government says it impedes agent patrols and the ability to aid migrants who may need help. There have been reports of serious injuries and drownings in the river.

The dispute predates Texas’s takeover of the park in Eagle Pass, a development that compounded the feud between the state and Biden administration.

Texas’ move into the park had “only a marginal effect on Border Patrol’s access and had nothing to do with the drownings,” the judges wrote, citing new findings made for the district court after the appeals panel issued a temporary injunction.

The case is Texas v. DHS, 5th Cir., No. 23-50869, opinion 11/27/24.