After delay, Texas to begin releasing migrants held in violation of state law under Gov. Greg Abbott’s border crackdown

A group of migrants walk off a pick-up truck after being apprehended by Department of Public Safety officers at a train depot in Spofford on Aug. 25, 2021.
A group of migrants walk off a pick-up truck after being apprehended by Department of Public Safety officers at a train depot in Spofford on Aug. 25, 2021.

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Three days after a state district judge ordered the immediate release of more than 240 migrants imprisoned in violation of state law, the Texas prison system finally received the paperwork Friday to begin letting the men out of custody on no-cost bonds.

Prison officials expect to turn the men, arrested under Gov. Greg Abbott’s glitchy border security initiative, over to federal immigration authorities to either be detained again, deported or released into the United States pending asylum hearings. They still face state prosecution in their trespassing cases.

Defense attorneys and prison officials said U.S. Immigration and Customs Enforcement authorities are routinely taking custody of men released from Abbott’s “catch and jail” border enforcement effort if they have been convicted of state criminal charges, which so far have consisted entirely of trespassing cases. ICE is also taking those who are released from state prisons on bond while still facing charges.

“If they’ve been sentenced and time served, then they would be handed over to ICE,” said Bryan Collier, executive director of the Texas Department of Criminal Justice, at a legislative hearing this week. “They’re also handed over to ICE if they make bail.”

This week, hundreds of detained migrants were all ordered released on personal bonds, which don’t require cash upfront, because they had been imprisoned for weeks without being charged with crimes. Texas law states criminal defendants must be released from jail on an affordable or a personal bond if prosecutors delay cases by not filing charges quickly. For trespassing, the charge on which the vast majority of migrants are arrested, that deadline is set at 15 or 30 days, depending on the charge level.

Under Republican Judge Roland Andrade’s order Tuesday, 75 migrants imprisoned for more than 15 days after being arrested and accused of trespassing in Val Verde County, home to Del Rio, were to be immediately released since the county prosecutor had not yet filed criminal charges against them. So were 168 migrants arrested more than 30 days before in Kinney County, a neighboring rural region.

County officials have said their local justice systems were overwhelmed with a sudden influx of hundreds of arrests by state police, leading to delays in prosecution. Jennifer Laurin, a law professor who teaches criminal law and procedure at the University of Texas at Austin, said the state law ordering release for delays in prosecution is meant to protect the right to a speedy trial.

“It’s not at all uncommon for it to come to pass that the state just isn’t ready and the defendant is ordered released,” she said. “What’s unusual about this instance is the sort of mass character of it.”

The men’s releases were delayed further as defense attorneys and prosecutors representing Kinney County negotiated how the migrants would be released, defense lawyers said. On Friday morning, three days after his ruling, Andrade received the agreed release orders, signed them and handed them over to the Texas prison system, he said.

On Friday afternoon, a TDCJ spokesperson said the prisons received the bond release paperwork and began working with ICE, which has employees based in the two prisons recently converted into state-run immigration jails under Abbott’s border policy.

In July, angered by federal government policies and a sharp rise in border crossings this year, Abbott ordered state police to arrest on state criminal charges and jail migrants suspected of having crossed the border illegally, most often for the misdemeanor offense of trespassing on private property. Since then, more than 1,000 men have been arrested and jailed, according to the Texas Department of Public Safety, almost exclusively in Val Verde and Kinney counties. As of Thursday, more than 900 of the migrants remained imprisoned.

Abbott has repeatedly praised DPS for keeping the border secure with ongoing trespassing arrests. But the initiative has been fraught with missteps since it began, including wrongful separations of families, the release of arrested migrants at a border town bus stop and dozens of men being imprisoned for weeks without being given a lawyer.

For the men set for release this week, their fate in ICE custody may differ from what they would have faced if apprehended by U.S. Border Patrol at the border. Under a federal policy that prohibits entry into the country during the pandemic, many migrants apprehended by Border Patrol agents after crossing into Texas are immediately deported. Texas RioGrande Legal Aid, a defense group representing hundreds of arrested migrants, said its clients imprisoned by the state and then turned over to ICE often have been released into the U.S. while awaiting asylum claims.

“Once in ICE, we have had many clients be released on their own recognizance, some are released on an immigration bond, and some are detained,” said Robert Elder, a spokesperson for TRLA.

TRLA plans to continue filing court motions to ask for the release of more migrants as they remain in jail past the 15- and 30-day deadlines.

Kinney County prosecutors also agreed Tuesday to dismiss charges against two men after their lawyers argued against the legality of Abbott’s new initiative as a whole. In part, the defense attorneys argued that police were wrongly selective in their arrests on trespassing charges by only arresting men who were almost exclusively Hispanic. A TDCJ spokesperson said their release paperwork also was not received until Friday morning.

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