Last month, the leader of a small Texas state commission — tasked with aiding criminal defense for low-income Texans — received an unusual request from top officials working with the Trump administration.

The U.S. Department of Justice needed their help providing legal services to immigrant children in their deportation cases, said Scott Ehlers, the executive director of the state’s Indigent Defense Commission.

The first call to Ehlers came from high-ranking lieutenants with Texas Attorney General Ken Paxton. Then James McHenry, the DOJ’s chief administrative hearing officer, who briefly preceded Pam Bondi as acting U.S. attorney general, reached out, Ehlers confirmed to The Texas Tribune.

The calls raised eyebrows from across the Texas agency, not just because of where they came from, but because the extraordinary request by the Trump administration was well outside of the commission’s experience and scope.

Ehlers told the officials that he did not believe that immigration defense for children was legal under his organization’s mandate, which the state Legislature created explicitly for criminal defense more than a decade ago.

A Justice Department spokesperson, who declined to be named, confirmed that officials with the federal Office of Refugee Resettlement, tasked with the care of immigrant children, asked for the Texas Attorney General’s office assistance in representing immigrant children, “however, they believed they could not do so, which is why they recommended the Texas Indigent Defense Commission to take on the project.”

The DOJ, the spokesperson said, “was asked to look into the legality” of contracting with the Texas commission. Federal money would be funneled to Texas from ORR, but that agency did not respond to further questions about a proposed contract.

The request comes as the Trump administration seeks to end protections for immigrant children on multiple fronts, including threatening to terminate the existing federally-mandated contract for legal assistance to minors facing deportation. A temporary contract with the longstanding legal services provider, the Acacia Center for Justice, a national nonprofit, is set to end this month. At the same time, the government has abruptly shuttered at least 50 federal shelters detaining immigrant children across Democratic states such as New York, Illinois and Michigan even as federal contractors in Texas advertised hundreds of shelter jobs. Lawyers and advocates say that indicates that they may soon expect to receive children from elsewhere in the country as so few are currently allowed to cross the border.

They worry that the administration’s calls to Texas suggest a broader effort to transfer unaccompanied minors to the state, from where it is easier to quickly deport them.

“We are concerned, as are our legal service provider partners, about a potential transfer of children to Texas where there is no independent oversight of facilities and away from many of the attorneys with whom children have built trust,” said Shaina Aber, executive director of Acacia Center, which holds the overseeing federal contract for legal representation to immigrant children. “We are awaiting the government’s plan for the tens of thousands of children — including over 20,000 who are currently represented — who receive services under this contract, many of whom are outside of Texas.”

Emily Hilliard, a spokesperson for the U.S. Department of Health and Human Services, which oversees ORR, said the administration continues to pursue “every available avenue” to help kids obtain legal representation for their immigration proceedings.

Agency officials did not respond to questions about whether such transfers would occur. They said, however, that many kids initially crossed the Mexico border with Texas, where there is sufficient capacity to detain the nearly 2,000 children currently in nationwide custody.

Spokespeople for Paxton and Gov. Greg Abbott did not respond to detailed questions about the involvement of the state.

Trump’s efforts to end protections for immigrant kids

Congress in 2000 passed a bipartisan bill that, among its stipulations, required the government to pay for some legal services for children who cross the border alone, based on the widely-held belief that children should not represent themselves in deportation proceedings.

The demand for funding became more urgent starting in 2012 when hundreds of thousands of immigrant children, mostly from Central America, began crossing the Texas border seeking to escape violence and poverty or reunite with their relatives in the U.S. Because of the federal laws and court settlement agreements intended to protect children, they for years have been among the hardest population to quickly deport.

Since taking office last year, Trump officials have chipped away at these protections, including making it more difficult for relatives to obtain children in custody, arresting them after welfare checks and suing to end a decades-long federal settlement agreement overseeing the rights of children in custody. Children are now staying in federal detention for months, prompting congressional scrutiny.

The administration is also litigating to end the legally mandated representation contract in federal court and have failed to pay providers while last month raiding some organization’s offices seeking evidence of financial impropriety and personal information of children. The government also is considering having military lawyers represent the government in children’s cases, Bloomberg Law reported.

Government lawyers have repeatedly argued that their legal representation is not mandated. At a hearing in April, for example, Jonathan K. Ross, a Justice Department attorney, told the court that “not only is there not a right to direct legal representation at the expense of the Government,” but pro bono lawyers could serve immigrant children at their own expense.

Lawyers for the advocates at the next hearing in the ongoing lawsuit this month plan to argue that the government is in contempt of federal court, partly because of the lack of payment. Kids In Need of Defense, a nonprofit founded by actress Angelina Jolie and the Microsoft Corporation, ended its subcontract with the Acacia Center this week as a result, saying the government owed it more than $20 million for legal services going back as far as December and has drastically reduced its staff.

“The attacks on federally funded legal service providers and the ongoing delay in payments to these organizations, as well as the unreasonable demand for sensitive data, fail to reflect the vital role attorneys play in protecting unaccompanied children and upholding the rule of law,” the organization’s president, Wendy Young, said in a statement this week. “We?are oftentimes ?these?children’s most?critical?line of defense against trafficking, exploitation, and abuse.”

The overarching temporary contract, overseen by the Acacia Center, ends on July 31. Although the administration is required to provide the organization with weeks of notice for how to transition the ongoing legal cases of children, it has not yet done so, which the groups argue is unlawful. At the same time, repatriation organizations in Central America have been told to prepare for a large number of children returned by the same day that contract ends.

In a recent letter to Health and Human Services Secretary Robert F. Kennedy, who oversees the child resettlement agency, U.S. Sen. Ron Wyden wrote that he had received “credible information” that the administration was using an “unprecedented legal framework” to quickly deport more than 500 immigrant children in its custody.

The Oregon Democrat, a ranking member of the Senate Finance Committee overseeing the budget, said to the Tribune this week that the Texas calls further add to his alarm about the plans for immigrant kids. Wyden’s staff last week raised concerns with Texas officials about the potential contract for legal representation but did not receive a confirmation of a plan.

“A sole source contract handed out by the Texas Attorney General to handle legal representation of unaccompanied children is not legal representation at all,” Wyden told the Tribune. “It is the Trump deportation agenda being executed by a political ally paid for by taxpayer dollars.”

A Trump-aligned state

Immigration rights advocates say consolidating immigrant children in a border state aligned with the Trump administration would make it easier to deport them.

Jonathan White, a former deputy director of ORR during Trump’s first administration, said that the recent effort is a “transparent part of a larger pattern of moving all of the program's capabilities and resources into Texas with a friendly political partnership with the governor's office there and the proximity to the border in order to turn all of these systems into platforms for removal.”

Texas cases are argued to the U.S. 5th Circuit Court of Appeals that has frequently ruled in the Trump administration’s favor on cases seeking to restrict the rights of immigrants. That court, for example, agreed that the government can refuse to release most immigrants from detention. As a result, habeas petitions that argue people are wrongfully imprisoned have overwhelmed Texas federal courts and are taking months to process. Immigration judges in the state deny asylum at a higher rate than elsewhere, according to federal statistics. An average of four deportation flights leave the state daily, the most in the country, according to ICE Flight Monitor, a human rights organization that tracks it.

Texas, along with Florida, also no longer regulates childcare facilities for immigrant children, preventing the state from investigating claims of neglect and abuse as it had for decades. Abbott ended that oversight through an executive order in 2021, blaming the Biden administration for encouraging illegal immigration and conflating the issue with the ongoing longstanding state foster care crisis.

“The state of Texas is not prepared to handle this undertaking in a humane way,” said Rochelle Garza, a South Texas attorney and executive director of the Texas Civil Rights Project, a statewide nonprofit legal advocacy group.

Garza, who previously lost against Paxton as a Democrat and serves on the U.S. Commission on Civil Rights, a bipartisan group created during the Eisenhower administration, said the administration’s outreach to Texas is “simply an attempt to undermine the federal government’s constitutional role and responsibility to execute immigration law.”

Texas Indigent Defense Commission

It remains unclear whether the Texas Indigent Defense Commission can legally take on the work representing immigrant children.

Rodney Ellis, a current Harris County commissioner, was a Houston state senator when he helped usher through a law creating the state’s legal framework for indigent defense. Ellis and two commission board members said the administration’s request for assistance on immigrant children was confounding. Helping to defend kids for civil immigration offenses is not what his bill intended, he said.

The legislation required courts to formalize procedures to provide attorneys for those who cannot afford them and set the stage for the creation of the Texas Indigent Defense Commission in 2011. Since then, the number of misdemeanor defendants without attorneys in the state have dropped by more than a half.

The organization oversees nearly three dozen state public defender offices serving more than 80 counties and operates as an entity funneling state money and highlighting best practices. Abbott’s office asked the commission to help represent the mostly misdemeanor defendants state troopers arrested during the multi-billion dollar border security program, known as Operation Lone Star, that the governor unveiled in 2021.

Despite its successes, the commission faces a significant attorney shortage and not enough resources to meet demand, making Texas the 46th in the nation when it comes to public defense funding per capita. The state only pays about 10 cents out of every dollar of criminal indigent defense costs and the commission is asking the Legislature for an increase of more than $242 million next year to meet some of the needs over the biennium.

“The state has never put any resources into us meeting our constitutional mandate that requires that people be given adequate legal representation,” Ellis said. “This suggestion to expand the mandate is ludicrous and sounds like just a way to ignore the intent of the legislation because you're trying to thumb your nose at federal procurement rules.”

Jim Bethke, a vice chair of the commission’s board who ran and lost as a Democrat candidate for Bexar County attorney last year, said that the commission was created to improve criminal defense, not initiatives outside of that mandate.

“If the Legislature determines that the commission’s responsibilities should be expanded, it has the authority to do so,” said Bethke, whose term on the commission ends this year.

State Rep. Joe Moody, an El Paso Democrat and member of the board, said he too was concerned. Although the Legislature in 2023 expanded the commission’s mandate to help with state family protective services cases, that has never been fully funded.

“What it definitely doesn’t provide for is federal civil defense,” said Moody, adding that he does not believe the state could do so without changing the government code.

It is possible that Abbott could issue an executive order to circumvent that, although the commission’s board remained unclear on that legality.

The government has previously attempted to move immigrant children to the Texas border and quickly deport them. Last year, government contractors awakened Guatemalan children in federal shelters or foster care and with little notification to their lawyers, abruptly transferred them to shelters near the Texas border. A federal judge halted that effort as some children were on a plane in Harlingen about to fly to Guatemala. The litigation is ongoing.

A move of immigrant children to Texas would follow on that Guatemalan attempt, said Marion "Mickey" Donovan-Kaloust, director of legal services for the Immigrant Defenders Law Center, a nonprofit organization in California involved in the legal case.

Late this week, her organization noticed that the policy manual on ORR’s website regarding the mandated 48-hour notices to attorneys before children are transferred suddenly went dark, saying “restricted access.” ORR did not respond to questions about that but advocates worry that is another sign that the administration intends to quietly transfer children.

“We've seen this pattern before,” said Donovan-Kaloust.

These suspected moves to Texas, she said, would be “the next phase of that same policy playbook.”

Disclosure: Microsoft has been a financial supporter of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune's journalism. Find a complete list of them here.

This article first appeared on The Texas Tribune.