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Texas continues imprisoning migrants without filing charges or appointing lawyers

Thousands of migrants have been arrested on trespassing charges under Texas Gov. Greg Abbott’s border security initiative. The arrests have led to repeated violations of state laws on due-process rights.
Chris Stokes
The Texas Tribune
Thousands of migrants have been arrested on trespassing charges under Texas Gov. Greg Abbott’s border security initiative. The arrests have led to repeated violations of state laws on due-process rights.

Months after the problems became apparent, migrants are still being kept in prison in violation of state laws under Gov. Greg Abbott’s border security crackdown.

As court fights continue over the constitutionality of Gov. Greg Abbott’s mass arrests of migrants at the Texas-Mexico border, new legal filings describe an ongoing and consistent pattern of men being illegally detained for a month or more as their cases stagnate in overwhelmed courts.

Nearly eight months after the state began arresting migrants and prosecuting them on trespassing charges under Abbott’s order, a group of defense attorneys told the state’s highest criminal court that some men are still locked up for months before the courts give them an attorney or prosecutors file misdemeanor charges against them, in violation of state laws.

Texas laws require that criminal defendants be assigned an attorney within three days of asking for one, and misdemeanor defendants be released from jail pending trial if prosecutors do not file charges within 30 days after arrest.

Those deadlines are regularly surpassed, according to the legal briefing from Texas Rio Grande Legal Aid, which represents hundreds of migrant men accused of trespassing on private property. Two men were detained in a state prison for nearly five months, unable to post bonds of $1,500, without being assigned lawyers or having any charges filed against them, defense lawyers said.

And efforts to fix the due-process violations and get the men out of prison, attorneys say, have been met with further delay by court officials in rural Kinney County, where the majority of Abbott’s trespassing arrests have occurred.

“Those unlawfully incarcerated in Kinney County have become pawns in the larger political debate about whether the Biden administration is adequately addressing border crossings,” defense attorney E.G. Morris wrote to the Texas Court of Criminal Appeals this week.

The claims were raised in a legal fight now before the Court of Criminal Appeals, in which Kinney County is seeking to prevent a Travis County judge from ruling on the legality of hundreds of migrants’ trespassing arrests.

The same judge in January found one migrant’s arrest under Abbott’s Operation Lone Star border initiative unconstitutional, and defense attorneys are hoping to leverage that ruling to help more than 400 other men. Kinney County is asking the high court to find that Travis County courts have no jurisdiction over Kinney County cases.

“It is apparent that these, and other, applicants are foregoing the functioning courts of Kinney County and seeking more agreeable counties and/or courts for their complaints,” David Schulman, acting assistant Kinney County attorney, wrote to the high court.

In legal briefings, Kinney County representatives did not respond to the allegations of unlawfully detained migrants and instead focused on the jurisdiction challenge. Neither the Kinney County judge nor the county attorney, who prosecutes misdemeanor crimes, responded to questions about the defense attorneys’ filings.

In July, Abbott ordered state troopers along parts of the border to arrest men suspected of crossing into the country illegally on state charges, most often trespassing on private property. The aggressive law enforcement tactic was the governor’s latest response to a rise in illegal border crossings.

But the new arrests quickly resulted in a flurry of legal missteps as Kinney County officials failed to keep up with the flood of defendants. By September, a local state district judge had ordered the release of nearly 250 men after they sat in prison for more than a month without having any criminal charges filed against them. Dozens had not been assigned a lawyer.

“There wasn’t the prosecutorial capacity to keep up with the number of arrests that DPS was making, plain and simple,” Department of Public Safety director Steve McCraw said at a legislative hearing on the operation last week. “It’s one thing to say, ‘Oh yeah, we can handle that.’ It’s another thing all of a sudden when you’ve got large numbers being booked into jail.”

The state brought in judges, prosecutors and defense attorneys to help with the caseload, and court hearings soon picked up speed. From October to February, Kinney County reported holding nearly 1,700 court hearings for the trespassing cases, resulting in nearly 500 men pleading guilty.

But the problem, the defense attorneys say, is far from over. DPS has reported more than 3,000 criminal trespassing arrests, the large majority of which have occurred in Kinney County.

Those who can’t afford to post bond still typically linger in prison between three and four months before they are able to go before a judge, the legal aid group said. At this first court hearing, men are offered immediate release from prison in exchange for a guilty plea. If they plead not guilty, they remain in jail indefinitely. The county has yet to schedule a trial for a trespassing arrest.

And getting courts to release men who have been detained beyond legal deadlines is hard to do in the conservative border county, the lawyers said. Such delays have only worsened, they said, after Kinney County Judge Tully Shahan dismissed state-assigned judges who had been hearing such cases and releasing unlawfully imprisoned men, swapping them out with five judges of his own choosing.

The legal group said the new judges either “simply refuse” to hear the cases now “or do so with lengthy delay.” The lawyers said after filing for the release of men held too long in late February at the local district court, the paperwork had still not been accepted by the clerk’s office this week. Attorneys were told it would be late April before a hearing was held.

The delays, defense attorneys argue, are what prompted the men to seek relief from their due-process violations outside of Kinney County, the focus of the lawsuit before the Texas Court of Criminal Appeals.

County representatives call the move “forum shopping,” as the defense groups sought out more liberal counties to rule against arrests ordered by the Republican governor, and asked the high court to halt other counties from ruling on their arrests. The migrants’ lawyers counter that the move was necessary to follow Texas laws on due process, a constitutional right that applies to migrants as well as U.S. citizens.

“Once they start watering down these protections, they’re watered down for all of us,” Kristin Etter, an attorney with Texas Rio Grande Legal Aid, told The Texas Tribune. “It’s designed to safeguard individual freedoms over overreaching government power, and it’s a sacred pillar of jurisprudence.”

Jolie McCullough develops data interactives and news apps and reports on criminal justice issues for the Texas Tribune. She came to the Tribune in early 2015 from the Albuquerque Journal, where her work as a web designer and developer earned her national recognition. She was at the Journal for four years and specialized in interactive maps and data-driven special projects. She is a graduate of Arizona State University’s Walter Cronkite School of Journalism and Mass Communication; while there, she interned as a reporter and online producer at the Arizona Republic and served as the web editor of the student-run newspaper, the State Press.