He should not have been arrested. But law enforcement on the Texas border has become a blur of overlapping agencies as Gov. Greg Abbott floods the region with state troopers and Texas National Guard personnel in an unprecedented state effort to arrest migrants after they enter the country illegally.
So the 61-year-old Venezuelan man who came seeking asylum found himself on a private dirt road in the border town of Del Rio, kissing his wife goodbye and walking blank-faced to the awaiting SUV of a state trooper. His wife sobbed quietly, wiping away tears with trembling fingers flecked with purple nail polish.
Nerio was one of the first to be arrested under Abbott's new border security initiative meant to jail migrants on state criminal charges, like trespassing. Instead of approaching the wrought-iron gates where county officials said a large majority of migrants turn themselves in to federal authorities, the couple had entered the country onto a private company's stretch of land.
As the trooper's SUV took off down the dusty road, Nerio was presumably off to be booked at a just-erected processing tent outside the local jail, have bail set over Zoom by a retired judge from elsewhere in the state, then sent more than 100 miles away to a Texas prison recently converted into a jail for migrants. Left behind, his wife would be taken to the federal immigration processing center, to begin deportation or asylum proceedings.
But the hundreds of Texas Department of Public Safety officers deployed to the region are only supposed to arrest unaccompanied men for trespassing if they cross the Texas-Mexico border onto private property, the Val Verde County sheriff said. Families and children are supposed to be handed over to U.S. Border Patrol agents.
"DPS should not have separated the husband and wife. That's a family unit," Sheriff Joe Frank Martinez said, minutes after witnessing the arrest.
/https://static.texastribune.org/media/files/5ce3db82e601822a7be912089fee5da6/Del%20Rio%20DPS%20Surge%20MG%20TT%2017.jpg)
A Venezuelan migrant watches as her husband is arrested by a Texas Department of Public Safety trooper in Del Rio last week. Credit: Miguel Gutierrez Jr./The Texas Tribune
A U.S. Border Patrol agent, who declined to answer questions, also appeared visibly confused by the arrest. When he realized the crying woman was Nerio's wife, he furrowed his brow and approached the trooper to get his contact information. As she fretted over her husband's hypertension when the trooper's SUV pulled away, the agent told her not to worry.
"No se preocupe, señora," he said, assuring her it would be okay. "Todo va a estar bien."
(The Texas Tribune is not publishing Nerio's last name because reporters witnessed the arrest but could not speak to him.)
In a statement Thursday, DPS did not answer questions about Nerio's arrest but said the agency is committed to securing the border under Abbott's direction. Aside from arrests, the agency said it has seized thousands of pounds of drugs and hundreds of guns since Abbott's Operation Lone Star kicked off in March.
"While the department does not discuss operational specifics, we continue to monitor the situation as it unfolds in order to make real-time decisions and will adjust operations as necessary," the statement read.
Nerio's arrest underlines the ongoing chaos and confusion as Abbott's rapidly assembled border security operation seeks to combat a surge of migrants at the state's southern border, many fleeing countries torn by some combination of violence, political turmoil and economic crisis.
Though DPS officers have increasingly been in the region for months, largely targeting human and drug trafficking, troopers have now turned their attention to jailing migrants on low-level state offenses. The number of arrests could swell into the thousands, and local officials are scrambling for resources while immigration rights activists are raising questions about the practice's constitutionality.
"Everything that's happened is happening so fast, it's almost like we're learning on the run so to speak," said Val Verde County Attorney David Martinez, who as a misdemeanor prosecutor is handling the cases of those DPS arrests in his county. "This hasn't happened in this area before, and I don't know that it's happened anywhere really before."
Last week, state troopers began arresting migrants in Del Rio for allegedly trespassing on private property — a misdemeanor that could lead to up to a year in jail because Abbott has declared the rise in immigration a disaster. As of Thursday, about 60 men had been arrested by DPS for allegedly trespassing, the sheriff said. The county attorney said most were from Venezuela, with others from Mexico and Cuba.
On Thursday, 55 migrants were detained in the converted Briscoe state prison in Dilley, a small town between San Antonio and Laredo, according to a prison spokesperson.
Nerio did not end up being among them. After the sheriff happened to drive onto the scene of the arrest with Tribune journalists in tow, he called the DPS regional director who, within minutes, ordered the trooper to reunite Nerio with his wife at the U.S. Customs and Border Protection processing center, the sheriff said. In a phone call Thursday, Nerio's wife said after days of sleeping on the ground in federal custody, she and her husband were released with an asylum hearing court date and have since reunited with their daughter in Oklahoma.
But the sheriff isn't always on site, and he said state troopers, cycled into the region for two-week stints, often aren't clear on what they're supposed to be doing.
"Situations like that happen all the time," Joe Frank Martinez said Friday.
Border politics
With an election year approaching, Abbott has focused heavily on border security efforts in recent months. Facing potentially competitive primary opponents in 2022, the governor has taken up some priorities of former President Donald Trump, including shifting money from the prison budget to invest in a border wall.
And he has repeatedly blamed the surge of migrants crossing into Texas on President Joe Biden's "dangerous and reckless open border policies," spokesperson Renae Eze said.
In the Del Rio region alone, federal immigration authorities apprehended nearly 150,000 migrants between October and June, most from Mexico, Honduras, Venezuela and Haiti. That's up from about 40,000 in the entire year prior.
/https://static.texastribune.org/media/files/3e5ac7f1ca732a8b96dad2352e324387/Del%20Rio%20DPS%20Surge%20MG%20TT%2010.jpg)
A group of migrants wait to turn themselves over to National Guard and Customs and Border Patrol officials at the U.S. and Mexico border in Del Rio on July 22, 2021. Credit: Miguel Gutierrez Jr./The Texas Tribune
Typically, migrants apprehended crossing the border are turned over to federal immigration authorities if they aren't suspected of more serious crimes. Federal officials either deport them or let them stay in the country if they have pending asylum claims. A vast majority in Del Rio, county officials said, cross the border and immediately turn themselves in so they can apply for asylum, a request protected under U.S. law.
But county officials said some evade detection by crossing away from major entry points, often traversing private land and frightening landowners.
Abbott's intent is to begin locking up as many of those migrants as possible.
"We have a new program contrary to the Biden plan to catch & release," Abbott said on Twitter Monday. "The Texas plan is to catch & to jail."
In border communities under the governor's border disaster declaration, Texas National Guard troops walk the fence lines with assault rifles strapped to their chests, and DPS SUVs are seen nearly every mile on local highways and filling hotel parking lots.
/https://static.texastribune.org/media/files/674b5cb0b8ba95369936147d135faa59/Del%20Rio%20DPS%20Surge%20MG%20TT%2035.jpg)
/https://static.texastribune.org/media/files/f566dbdeb1b3a08a1f0aa9694c2a60ce/Del%20Rio%20DPS%20Surge%20MG%20TT%2005.jpg)
Texas DPS troopers are a constant presence in Val Verde County. Credit: Miguel Gutierrez, Jr. / The Texas Tribune
The American Civil Liberties Union of Texas has raised constitutional concerns with the governor's plan, arguing the arrests could interfere with people's right to seek asylum in the United States. DPS did not answer a written question asking if troopers would refer migrants to Border Patrol if they requested asylum.
"It seems like what DPS is trying to do is funnel people to ICE detention, but … ICE detention space is limited," said Kate Huddleston, a lawyer with the ACLU of Texas. "This is essentially an end run around federal immigration policy."
The most populated and largely Democratic border counties, like El Paso and those in the Rio Grande Valley, have refused the governor's request to send more law enforcement to their regions. Local officials have argued there is no increase in criminal activity in their counties that justifies a disaster declaration and law enforcement surge.
In Val Verde County, however, officials acknowledge that they're overwhelmed by the recent swell of migrants. It's no longer unusual for hundreds of people a day from all over the world to approach the previously low-trafficked border gates in Del Rio to request asylum. Unlike in the Rio Grande Valley, the sheriff said his county is not prepared for many migrants and lacks shelter and transportation for them.
"We need more of everything," he said, including state law enforcement resources.
Joe Frank Martinez is a Democrat. Val Verde flipped from a blue county in the 2020 election when it favored Trump for president.
Uncharted territory
Following Abbott's evolving orders on border security — including a new one this week for the Texas National Guard to also make trespassing arrests, state and county officials have raced to prepare what is largely a new Texas criminal justice system for immigrants. But the process is filled with unknowns.
In June, after Abbott forewarned of widespread arrests of migrants by the state police force, state agencies and local officials rushed to find space and staff to detain the arrested migrants, judges to process them and attorneys to prosecute and defend them. The new system also has the state and counties reaching deep into their pockets to pay for all the extra resources demanded.
Even still, the state criminal justice system likely won't hold most of the arrested migrants for long.
Sitting behind a desk crowded with papers and folders in a cramped annex outside the county courthouse last week, County Attorney David Martinez said he expects to offer plea bargains of time served to most of the defendants facing trespassing charges. That means the migrants — if they plead guilty — would be released from the state system about 10 days after their arrest, he said.
It would then be up to federal authorities to decide if they want to take custody of the migrants.
A spokesperson for U.S. Immigration and Customs Enforcement did not specify whether the detainees would be priorities for their agency, but the county attorney said he believed ICE had asked to be notified before the release of all those arrested. In ICE custody, many would likely be quickly deported.
Regardless of how long they're jailed, the operation demands plenty of resources.
This month, the state quickly erected a tent processing facility just outside the Val Verde County jail where the migrants now being arrested by DPS are booked as inmates and have their first appearance before a judge.
/https://static.texastribune.org/media/files/f00b307cc884426fb8c03c3d78d352d1/Del%20Rio%20DPS%20Surge%20MG%20TT%2049.jpg)
A temporary processing facility for arrested migrants next to the Val Verde Sheriff's Office in Del Rio on July 23, 2021. Credit: Miguel Gutierrez Jr./The Texas Tribune
Selected from a rotating list of 15 retired judges pegged by the Texas Supreme Court for Val Verde County arrests under Abbott's border initiative, the judges set bail through Zoom. As of Thursday, none of the defendants could afford to post bail and all qualified as indigent, the county attorney said. Then the migrants await transportation to the Briscoe state prison, which has been converted into a state-run jail.
At the same time, the county attorney looks over the DPS arrest documents and files the criminal charges, as all arrests have so far been for criminal trespassing, the sheriff said Thursday.
"Once Texas laws are being violated, unfortunately I can't turn the other way," David Martinez said. "I'm not inquiring when I get a file, 'Hey, is this guy a non U.S. citizen?' My question is, does … this alleged crime meet the elements of a criminal trespass case? And if it does, it does."
But if state police ramp up to 200 arrests a day, a possibility for which the state Office of Court Administration is preparing, the county attorney, the county clerk and the lone misdemeanor judge will likely be overwhelmed and require outside help. Already, the local defense bar is struggling.
In an emergency meeting Monday, the Texas Indigent Defense Commission, which is funded by the state primarily from court fees, moved to spend more than $475,000 to provide more lawyers and legal services to represent the new defendants in Briscoe over the next few weeks. If arrests ramp up and continue, the commission estimates indigent defense costs will total about $30 million a year.
"We genuinely don't know that we can get through the next three to four weeks of cases," said Geoff Burkhart, the commission's executive director, in the meeting.
If no funding comes from the state, the brunt may fall on the county taxpayers.
"Val Verde County and the other counties are going to be the ones that are on the hook for paying for lawyers," Sharon Keller, the Texas Court of Criminal Appeals' presiding judge, said in the TIDC meeting.
At the jail, Joe Frank Martinez has already been keeping a tab. He began seeing his jail population skyrocket with DPS arrests even before the new operation began to target criminal trespassing and process migrants separately, he said. He hopes the state will reimburse the nearly $190,000 that the county has had to pay for the overbooked jail since the governor's Operation Lone Star was initiated in March.
"That's something that we're going to be in discussions with with the governor's office," the sheriff said. "It wasn't promised."
When asked about the jail costs, Eze with Abbott's office said the jail costs were high "because of the influx of migrants coming through, not because of the operation itself."
/https://static.texastribune.org/media/files/6ef523e33d7fa135b8180f581c27df14/Del%20Rio%20DPS%20Surge%20MG%20TT%2043.jpg)
A portion of newly-erected fence that is being constructed and paid for by the state on private property in Del Rio. Credit: Miguel Gutierrez Jr./The Texas Tribune
The state has, however, paid for and is installing more than a mile of barbed wire fence on a private company's riverside property in Del Rio, according to the land owner. The fence will allow DPS to more easily arrest migrants for criminal trespassing and mischief, since they will have to cross or cut through the fence.
To convict someone of criminal trespassing in Texas, the person must have had notice they were on private property. State statute says a fence alone constitutes that notice. And damaging the fence would also be a misdemeanor criminal mischief offense.
Most of the DPS criminal trespassing arrests since last week, including Nerio's, occurred on that property, the county attorney said.
"I told them, 'What you're going to do there is not going to last,'" the property owner, who asked not to be named for fear of retaliation by Mexican cartels, said he told a state official about his new fence. "He said, 'That's what we want. We want them to cut through it, and then we can arrest them.'"
Miguel Gutierrez Jr. contributed to this report.
Join us Sept. 20-25 at the 2021 Texas Tribune Festival. Tickets are on sale now for this multi-day celebration of big, bold ideas about politics, public policy and the day's news, curated by The Texas Tribune's award-winning journalists. Learn more.
