Thread: Attorney General Ken Paxton Refuses Biden Administration’s Demand to Surrender Shelby

Attorney General Ken Paxton RefusesBiden Administration’s Demand to Surrender Shelby Park and End Border Security Measures



January 26, 2024


Texas Attorney General Ken Paxton responded in a letter today denying demands made by the U.S. Department of Homeland Security (“DHS”), explaining that Texas will continue securing the border. Additionally, Attorney General Paxton made a list of counter-demands, requesting the federal agency release certain documents and precise information relating to their alleged authority.


On January 11, the Texas Military Department secured Shelby Park in Eagle Pass, Texas, to protect the public and reinforce border security measures deterring an ongoing invasion. Inexplicably, DHS alleged that such law enforcement actions were unlawful and demanded that Texas “cease and desist” its activities to secure the park. On January 17, Attorney General Paxton rejected DHS’s claims, detailing how the agency misstated “both the facts and the law.” DHS then sent another letter, demanding that Texas tear down all obstructions on the property, open the border to illegal aliens, and surrender Shelby Park.

Today, Attorney General Paxton has denied the Biden Administration’s unfounded requests and issued counter-demands. By February 15, DHS must supply the official plat maps and deeds demonstrating the precise parcels to which they claim ownership, an explanation of how Texas is preventing access to those specific parcels, documentation showing that Eagle Pass or Texas ever granted permission for DHS to erect infrastructure that interferes with border security, and proof of Congress empowering DHS to turn a Texas park into an unofficial and illegal port of entry. If the federal government is going to make such claims, it must provide proof.

“Presumably because you have no meaningful response to our letter, your latest letter abandons earlier factual assertions, asserts new ones, and supplies even less of a legal basis for your demand. Once again, I respectfully suggest that any time you might spend suing Texas should be redirected toward enforcing the immigration laws Congress already has on the books,” Attorney General Paxton told DHS. “As I said before, this office will continue to defend Texas’s efforts to protect its southern border against every effort by the Biden Administration to undermine the State’s constitutional right of self-defense,”


To read the letter, click here.


https://www.texasattorneygeneral.gov...y-park-and-end

Jonathan E. Meyer
General Counsel


U.S. Department of Homeland Security 2707 Martin Luther King Jr Ave SE Washington, D.C. 20528-0525

Dear Mr. Meyer:

January 26, 2024

I have received your second demand letter dated January 23, 2024, in which DHS continues to complain about how TMD secured Shelby Park in the City of Eagle Pass, Texas. In a previous response, I explained that your original letter “misstates both the facts and the law in demanding that Texas surrender to President Biden’s open-border policies.” Presumably because you have no meaningful response to our letter, your latest letter abandons earlier factual assertions, asserts new ones, and supplies even less of a legal basis for your demand. Once again, I respectfully suggest that any time you might spend suing Texas should be redirected toward enforcing the immigration laws Congress already has on the books.

Again, let’s start with the facts. As I have already explained, U.S. Border Patrol withdrew from Shelby Park last year and deliberately reduced its ability to respond to medical emergencies in the vicinity. The tragic incident on January 12, 2024 that you once tried to pin on Texas had already occurred well before your agency’s officers arrived at the Shelby Park gate—conspicuously lacking any equipment to perform an emergency rescue. And the supposed “Memorandum of Agreement” between U.S. Customs and Border Protection and the City of Eagle Pass from 2015 (2015 MOA) was never approved by Texas as required under the State’s constitution.
Your latest letter disputes none of this. Instead, you now claim Texas has somehow restricted access to land owned by the federal government. Yet your first demand letter acknowledged that Shelby Park “is municipal land owned by the City of Eagle Pass,” not the United States. Which is it?

If this newfound allegation of federal “property rights” were true, Texas would of course remove any obstructions to federal land pursuant to a lawful court order. This State will continue to respect another sovereign’s property rights, even though the federal government refuses to do so. See, e.g., Texas v. DHS, 2023 WL 7135677, at *3 (W.D. Tex. Oct. 30, 2023) (Moses, C.J.) (finding federal agents repeatedly trespassed to state chattels, and even “damaged more property a mere day after”

P.O. Box 12548, Austin, Texas 78711-2548 • (512) 463-2100 • www.texasattorneygeneral.gov


the State sought a temporary restraining order); Texas v. DHS, 88 F.4th 1127, 1136 (5th Cir. 2023) (observing that federal agents “have repeatedly ‘damage[d], destroy[ed], and exercis[ed] dominion over state property’”), vacated, 2024 WL 222180 (U.S. Jan. 22, 2024) (mem.).
After conducting a diligent search in the arbitrarily short period you allotted for this rebuttal, it appears there are serious reasons to question both of your new claims of federal property rights.

First, you say the United States acquired fee-simple title to certain parcels in the Shelby Park area. But your own map shows that most of the tracts you reference fall outside the perimeter area secured by Texas at Shelby Park. With respect to parcels identified in your maps that are actually in the vicinity of the park, publicly available records suggest the United States does not even purport to own what your latest letter claims. For example, the home-cooked map attached to your letter insinuates that the United States has title to every parcel on the west side of Ryan Street bordering Shelby Park. Based on our necessarily cursory review, current records from Maverick County do not support that claim. By February 15, 2024, Texas hereby demands that your agency supply the following documents and information to this office:


• official plat maps and deeds demonstrating the precise parcels that you believe the United States owns; and
• your explanation of how exactly Texas officials are preventing access to those parcels by federal agents.

Second, you say the United States acquired a perpetual easement from the City of Eagle Pass in 2018. What I said last week about the 2015 MOA, I will say again about your latest claim: “Texas never approved that transaction as required by Article IV, § 10 of the Texas Constitution. Your federal agency cannot have something that was not the City’s to give.” You are invited to read that document at https://tlc.texas.gov/docs/legref/TxConst.pdf. But even if the 2015 MOA were somehow valid, you are not seeking “access consistent with” its terms. The “nonexclusive” easement from 2018 is attached for your convenience. Its express “purpose” was to allow “maintenance . . . of a road” along the river, including “the right to trim . . . trees” or other obstacles within the roadway. Elsewhere, the 2018 easement prohibits the United States from making any permanent improvements “other than a Roadway” without written City approval. If your federal agency wishes to help municipal officials with tree-trimming and road-maintenance chores, I suspect they would appreciate the help. The 2018 easement, however, nowhere contemplates allowing the federal government to deploy infrastructure that President Biden will use to wave thousands of illegal aliens into a park that will “continue to [be] use[d] and enjoy[ed]” for “recreation events.” By February 15, 2024, Texas hereby demands that your agency supply the following documents and information to this office:
• any written approval from the City of Eagle Pass or the State of Texas consenting to allow your federal agents to erect the open-border infrastructure hinted at in your letter; and
• your explanation of where the Congress has empowered your federal agency to pursue this
scheme, notwithstanding statutory provisions to the contrary.
2


Without clarifying both the metes and bounds of the federal government’s alleged “property rights,” and how its lawful access to such property has been in any way impeded, the State cannot meaningfully assess your demand. But to the extent your agency demands access in order to once again transform Shelby Park into “an unofficial and unlawful port of entry,” Texas v. DHS, 2023 WL 8285223, at *14 (W.D. Tex. Nov. 29, 2023) (Moses, C.J.), your request is hereby denied.

To be clear, your latest letter points to no law supporting the agency’s right to do that. In an unexplained reference to “Border Patrol’s responsibility and statutory authorities,” you parrot statutory language about the need “to patrol the border.” But you (unsurprisingly) omit the statutory language that your agency continues publicly to disregard: Border Patrol is tasked with “patrolling the border to prevent the illegal entry of aliens.” 8 U.S.C. § 1357(a)(3) (emphasis added). Instead, you fixate on a recent order from the Supreme Court of the United States. As you know, that unsigned order supplied no rationale for vacating a Fifth Circuit injunction. It may be that the Supreme Court was misled by allegations levelled by your federal agency, and which you repeated in your January 14th letter to our office. In any event, the Court’s order certainly said nothing about access to Shelby Park, which even the federal government’s lawyers acknowledged is “not presented” in that ongoing litigation. See Second Supplemental Memorandum at 5, DHS v. Texas, No. 23A607 (Jan. 15, 2024).

As I said before, this office will continue to defend Texas’s efforts to protect its southern border against every effort by the Biden Administration to undermine the State’s constitutional right of self-defense. You should advise your clients to join us in those efforts by doing their job and following the law.


Sincerely,


Ken Paxton
Attorney General of Texas


cc: The Honorable Greg Abbott, Governor of Texas
Major General Thomas M. Suelzer, Adjutant General, Texas Military Department The Honorable Merrick B. Garland, U.S. Attorney General


Enclosure



https://www.texasattorneygeneral.gov...2032407913.pdf

Attorney General Ken Paxton

@KenPaxtonTX

Today, I denied the Biden Administration’s unfounded requests & issued counter-demands. By February 15, DHS must supply the official plat maps & deeds demonstrating the precise parcels to which they claim ownership, an explanation of how Texas is preventing access to those specific parcels, documentation showing that Eagle Pass or Texas ever granted permission for DHS to erect infrastructure that interferes with border security, & proof of Congress empowering DHS to turn a Texas park into an unofficial & illegal port of entry. If the federal gov. is going to make such claims, it must provide proof. Presumably because you have no meaningful response to our letter, your latest letter abandons earlier factual assertions, asserts new ones, & supplies even less of a legal basis for your demand. Once again, I respectfully suggest that any time you might spend suing Texas should be redirected toward enforcing the immigration laws Congress already has on the books. As I said before, this office will continue to defend Texas’s efforts to protect its southern border against every effort by the Biden Administration to undermine the State’s constitutional right of self-defense.

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