Migrant arrests in Texas routinely lead to unlawful detention, lawyers say

Sign up for The Brief, our daily newsletter that keeps readers informed about Texas’ most essential news.

As court battles continue over the constitutionality of Governor Greg Abbott’s mass arrests of migrants at the Texas-Mexico border, new legal documents describe a continuing and consistent pattern of men being unlawfully 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 for trespassing on Abbott’s orders, a group of defense attorneys told the state’s highest criminal court that some men were still locked up for months before the courts gave them a lawyer or prosecutors filed a misdemeanor case. charges brought against them, in violation of state laws.

Texas laws require defendants be assigned a lawyer within three days of the request, and those accused of a misdemeanor to be released from prison awaiting trial if prosecutors do not file charges within 30 days of arrest.

Those deadlines are routinely exceeded, according to the legal brief from Texas RioGrande Legal Aid, which represents hundreds of migrant men charged with trespassing on private property. Two men were held in state prison for nearly five months, unable to post $1,500 bonds, without being assigned lawyers or facing charges, the lawyers said. of the defense.

And efforts to redress due process violations and get the men out of jail, lawyers say, have been stalled by court officials in rural Kinney County, where the majority of Abbott’s trespassing arrests have taken place. location.

“Those unlawfully incarcerated in Kinney County have become pawns in the larger political debate over whether the Biden administration is adequately handling border crossings,” the attorney for the county wrote this week. EG Morris defense at the Texas Court of Criminal Appeals.

The claims were raised as part of a legal battle in the Court of Criminal Appeals, in which Kinney County is seeking to block a Travis County judge from ruling on the legality of the arrests of hundreds of migrants for trespassing .

In January, the same judge ruled the arrest of a migrant in Abbott’s Operation Lone Star border initiative unconstitutional, and defense attorneys hope to leverage the 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 matters.

“It is apparent that these applicants, and others, are foregoing the functional Kinney County courts and seeking more congenial counties and/or courts for their complaints,” wrote David Schulman, Acting Assistant Counsel for Kinney County. , to the high court.

In legal briefings, Kinney County officials did not respond to allegations of illegally detained migrants and instead focused on challenging jurisdiction. Neither the Kinney County judge nor the county attorney, who is prosecuting the misdemeanors, responded to questions about the documents filed by defense attorneys.

In July, Abbott ordered state troopers along parts of the border to arrest men suspected of illegally entering the country on state charges, most commonly of trespassing on a private property. The aggressive law enforcement tactics were the governor’s latest response to an increase in illegal border crossings.

But the new arrests soon sparked a wave of legal missteps as Kinney County officials failed to keep up with the flood of defendants. In September, a local state district judge ordered the release of nearly 250 men after they spent more than a month in jail without any criminal charges being brought against them. Dozens of them had not received a lawyer.

“There was no prosecution capacity to track the number of arrests that the DPS was making, plain and simple,” Department of Public Safety Director Steve McCraw said during a legislative hearing on the matter. operation last week. “It’s one thing to say, ‘Oh yeah, we can handle this.’ It’s another thing all of a sudden when you have a lot of inmates.

The state brought in judges, prosecutors, and defense attorneys to help deal with the caseload, and court hearings quickly ramped up. From October to February, Kinney County said it held nearly 1,700 hearings for trespassing cases, resulting in nearly 500 men pleading guilty.

But the problem, according to defense lawyers, is far from solved. DPS has reported over 3,000 arrests for criminal trespassing, the vast majority of which were in Kinney County.

Those who cannot afford to post bail usually stay in jail for between three and four months before they can appear before a judge, the legal aid group said. At this first hearing, the men are offered immediate release from prison in exchange for a guilty plea. If they plead not guilty, they remain in prison indefinitely. The county has not yet scheduled a trial for a trespassing arrest.

And getting the courts to release men who have been detained beyond legal deadlines is hard to do in the conservative border county, the lawyers said. Those delays only got worse, they said, after Kinney County Judge Tully Shahan fired state-appointed judges who had heard such cases and released illegally imprisoned men. replacing by five judges of his choice.

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

The delays, defense attorneys say, are what prompted the men to seek redress for their due process violations outside of Kinney County, at the center of the trial in the Texas Court of Criminal Appeals.

County officials are calling the move “forum shopping,” as advocacy groups sought more liberal counties to speak out against the Republican governor’s arrests and asked the High Court to block other counties from ruling on their arrests. Lawyers for the migrants counter that the move was necessary to comply with Texas due process laws, a constitutional right that applies to migrants as well as US citizens.

“Once they start watering down those protections, they’re watering down for all of us,” Kristin Etter, an attorney at Texas RioGrande Legal Aid, told the Texas Tribune. “It is designed to protect individual liberties in the face of excessive government power, and it is a hallowed pillar of jurisprudence.”