Jolie McCullough, The Texas Tribune

During his eight years in office, Texas Gov. Greg Abbott has had countless pardon requests land on his desk. Almost always he waves them off.

Even in high-profile cases, in which Republicans and Democrats alike have desperately called for the governor to spare the lives of death row prisoners many believe are innocent after years or decades of court scrutiny, Abbott has not used the limited pardon powers he possesses to step in.

Instead, he’s deferred to the bedrock of the American legal system: A jury of one’s peers determines if someone is guilty of a crime, and appellate courts scour cases for wrongdoings or mistakes.

But in one case, the governor is straying from the norm — that of a U.S. Army sergeant found guilty of murdering a man protesting police brutality in Austin. After a two-week trial and 17 hours of jurors’ deliberation, Daniel Perry was convicted last week in the 2020 shooting death of Garrett Foster.

Without any indication the governor reviewed the evidence in the complex case involving self-defense claims and gun rights, Abbott called on the Texas Board of Pardons and Paroles to hand him a pardon recommendation the day after Perry was convicted.

“I am working as swiftly as Texas law allows regarding the pardon of Sgt. Perry,” he said on Twitter on Saturday afternoon, after being blasted by hardline conservatives, including firebrand Fox News host Tucker Carlson, on Friday night for his lack of immediate response.

The surprising call prompted immediate criticisms that the move is a blatant attempt to score political points with the far right by a governor contemplating a presidential bid. But it is also a remarkable attempt to extend his power over the judicial system.

In one tweet, Abbott — a former state Supreme Court justice who served three terms as attorney general before moving to the governor’s mansion — made clear he intends to bypass the judge, the jury and the criminal justice system’s appeals process to impose his desired outcome on the controversial case.

“This is unprecedented,” state Rep. Ron Reynolds, chair of the Texas Legislative Black Caucus, said in a statement this week. “In a state where this governor often touts the ‘rule of law’ and cracking down on crime, here we see him openly stating his intention of pardoning a convicted murderer who took the life of a protester.”

An Abbott spokesperson did not answer repeated questions on whether anyone in the governor’s office sat in on Perry’s trial, reviewed evidence in the case or contacted the victim’s family before his announcement. Nor would they shed light on the motivation behind Abbott’s decision.

U.S. Rep. Greg Casar, an Austin Democrat who previously battled with Abbott while serving on the City Council, said in a statement this week that the governor’s move was purely political.

“There are no winners in a murder trial, but Greg Abbott is abusing this pardon to win a presidential primary,” Casar said. “After this move, Abbott can never again claim that he’s for public safety, a fair criminal justice system, or common sense.”

“Puerile dog whistle”

Attorneys who work in the field say they cannot recall any instance in which Abbott, or any other governor, essentially instructed the Board of Pardons and Paroles to give him the recommendation he needs to legally pardon a defendant.

In the past, Abbott has used his pardon authority as an act of compassion, clearing the records of those convicted of low-level crimes committed years or decades earlier. Once, in 2018, he used his pardon powers to resentence a death row prisoner, Thomas Whitaker, to life in prison in large part because Whitaker’s father, the only remaining member of the family Whitaker had murdered, begged for mercy.

But in death penalty cases that raise significant doubts about miscarriages of justice, Abbott has declined to involve himself — even under intense public pressure.

In 2019, for instance, widespread doubts about the guilt of death row prisoner Rodney Reed prompted a bipartisan call from state lawmakers and a recommendation from the parole board for Abbott to exercise his power and halt the execution. He did not. Reed remains on death row as courts again review his case.

Last year, an international outcry reached a crescendo with the approaching execution date of Melissa Lucio, whom many believe is innocent. Abbott said he would weigh the case only after a judgment by the parole board. Lucio’s case also remains in the courts’ hands.

When a pardon is sought based on a claim of innocence, convicts must typically apply to the board with recommendations from at least two trial court officials or a court ruling of innocence, according to state code.

But the board is also required to look into a pardon for anyone at the request of the governor, who alone appoints its seven members. On Monday, a spokesperson for the board said members were immediately beginning an investigation into Perry’s conviction.

Although Abbott’s request itself was unexpected, pardons attorney Gary Cohen said what astonished him most was that the governor appeared to be telling the board how to rule, indicating he intends to pardon Perry.

“He’s essentially treating them like his minions, like puppets,” Cohen said. “In my 35-plus years of doing parole work, I have never seen a governor make a request of a parole board like this.”

Even more disturbing, Cohen argued, is Abbott’s disregard for Foster’s family, for the jury and for the criminal justice process.

“He didn’t allege any kind of specific misconduct, he just engages in this puerile dog whistle,” Cohen said. “[Abbott] is a former attorney general. He was a justice for the [Texas] Supreme Court. He should know better.”

The pardon request has thrown Perry’s still-unresolved criminal case into a frenzy. Although he has been convicted, he has yet to be sentenced — a punishment that will be between five years and life in prison. His sentencing hearing is not yet scheduled, and Perry’s defense attorneys have waved off commenting on the drama unfolding in the political sphere, saying they are focused on the ongoing case.

Perry shot and killed Foster from his car in downtown Austin in July 2020, two months after the murder of George Floyd by a Minneapolis police officer. Foster was carrying an AK-47, which is legal in Texas. After Perry turned into a crowd of marching protesters, he fired repeatedly at Foster from his handgun, sped away and called police. Perry has said Foster had raised his rifle toward him; witnesses said he didn’t.

Defense attorneys this week filed a motion for a new trial, saying that key evidence was excluded that could have led the jury to believe Foster, not Perry, was the aggressor in the incident. The motion said jurors should have seen evidence that they claim shows Foster had on three other occasions stopped cars during protests by blocking them with his girlfriend’s wheelchair. His lawyers also said the jury should have been able to review the lengthy police report, in which a detective deemed Foster’s death a “justified homicide.”

It’s not an uncommon motion, and even if it is denied in the district court, the arguments would undoubtedly reappear in the inevitable appeals process in place to safeguard against wrongful conviction — unless Abbott puts his thumb on the scales of justice and pardons Perry first.

Self-defense or murder

Perry’s murder trial was never expected to be an easy win for prosecutors. It’s a complicated case embedded within the increasingly dangerous political landscape that often pits police supporters against racial justice advocates.

At trial, prosecutors said Perry intentionally and dangerously drove into a crowd of protesters, and that Foster approached Perry’s window to speak to him, according to the Austin American-Statesman. Although Foster was armed, prosecutors said his rifle’s safety was on, he did not have a bullet in the chamber, and the gun was lowered when Perry shot him five times.

Defense attorneys said Perry drove into the crowd because he was distracted by a text message. They said a protester forced Perry to stop by jumping in front of his car, and others hit and kicked his car. Foster shouted at him to get out, they argued, and lifted his AK-47 toward Perry when the Army sergeant shot him.

Perry’s story changed over several interviews with police, including whether he was texting and whether Foster raised his gun, prosecutors said. Multiple witnesses said Foster didn’t lift his rifle. In an initial interview with police, which was shown to the jury, Perry sobbed in an interrogation room before telling a detective that he believed Foster “was going to aim at me.”

“I didn’t want to give him a chance to aim at me, you know?” he said.

After the shooting, Perry’s social media presence fueled speculation. He had responded to a June 2020 anti-protester tweet by then-President Donald Trump with “Send them to Texas we will show them why we say don’t mess with Texas.”

Prosecutors at trial also noted that Perry spoke online with a friend about someone intentionally driving into protesters in Seattle and shooting someone and questioned whether the driver in such an incident could say they acted in self-defense.

The jury found Perry guilty of murder but did not convict him on an aggravated assault charge related to driving in front of another protester.

The conservative backlash was immediate. Texas’ GOP Chair and hardline conservative Matt Rinaldi said on Twitter that the case should never have been prosecuted and that a pardon by Abbott “is in order.”

Later in the evening, Carlson blasted Abbott for his lack of immediate response to Perry’s conviction. Broadcast to his 3.3 million weekly viewers, Carlson said Abbott declined his invitation to discuss the case on his show. He said that meant Abbott’s position is “there is no right of self-defense in Texas.”

The next afternoon, Abbott came forward.

“Texas has one of the strongest ‘Stand Your Ground’ laws of self-defense that cannot be nullified by a jury or a progressive District Attorney,” Abbott’s Twitter post said, referring to Travis County District Attorney José Garza. “I look forward to approving the Board’s pardon recommendation as soon as it hits my desk.”

Abbott has made a habit of knocking down progressive Austin officials and policies regarding police. In 2020, protests prompted the local City Council to pass a “defund the police” measure, which largely aimed to shift police responsibilities, like 911 dispatch, and their coinciding funds to other departments.

The move had a powerful backlash. The governor started a “Back the Blue” campaign, and the next year signed legislation that forced Austin to walk back its policy and would punish other cities that try to reduce police budgets. The department, like many others in big cities, has struggled with staff shortages. Abbott called the budget reductions “downright dangerous.”

Abbott also floated the possibility last year of pardoning Austin police officers who were charged with aggravated assault during the protests. None has yet been convicted.

Politics in pardons

Perry’s fate now lay in the hands of the seven people whom Abbott has placed on the pardons and parole board.

It’s unclear how independently the board works from Abbott, but gubernatorial intervention has been suspected in at least one other high-profile case: George Floyd.

In 2021, the board surprised the state by unanimously recommending a posthumous pardon for Floyd in a 2004 Houston low-level drug conviction. The officer who arrested Floyd, Gerald Goines, has since been found to have routinely lied during alleged drug buys after a botched, deadly raid prompted an investigation.

Abbott sat silently on the recommendation for months. In the immediate aftermath of Floyd’s murder, Abbott had expressed outrage at Floyd’s death and even hinted at a possible George Floyd Act in Texas to prevent police brutality. But as protests continued, calls for defunding the police grew and his reelection season revved up, Abbott pivoted toward a tough stand in support of law enforcement.

In December 2021, nearly three months after the board made its recommendation, it was rescinded — citing procedural errors and a lack of compliance with board rules. The announcement was made by the governor’s office.

Last September, the board officially rejected Floyd’s posthumous pardon request. It did not say why.

In Perry’s case, Garza sent a letter to the board Tuesday asking members to conduct a full, independent investigation.

“Before making any decision, I implore you to review the trial transcript, evidence from trial officials that may have an impact on public safety, and request input from the victim’s family as to how a pardon may impact them,” the district attorney said.

Cohen, who works exclusively on pardons cases, said he respects all of the board members and understands the tremendous political pressure they’re under. But he hopes they won’t succumb to it.

“If they do, it’s going to undermine the rule of law that Republicans think so highly of except for when it doesn’t suit their purposes,” he said.

A defense attorney told the State Commission on Judicial Conduct last week that Judge Allen Amos told her the trespassing defendants weren’t “your regular wetbacks,” according to a copy of the complaint obtained by The Texas Tribune.

“They have phones and clothes and all kinds of other things,” Amos reportedly said in July to defense attorney Emily Miller, whose complaint was first reported by The Daily Beast.

Miller is asking the commission to consider whether Amos’ alleged comment violates the Texas Judicial Code of Conduct. On Monday, Amos told the Tribune he would not comment on the complaint but would “have to wait for the judicial ethics people.”

It’s unknown if he will continue serving as a visiting judge for migrant trespassing cases in the meantime.

[Texas’ border operation is meant to stop cartels and smugglers. More often, it arrests migrants for misdemeanor trespassing.]

Aside from being racist, Miller told the commission she interpreted Amos’ comment to mean he believed the migrant defendants weren’t poor, potentially influencing his bond decisions for men held in a state prison on low-level misdemeanor charges.

“I have had several indigent clients of Guatemalan, Honduran, and Mexican descent whose bonds have recently been revoked by Judge Amos, and his presumed bias against my clients by calling them ‘wetbacks’ and mentioning their supposed affluence leads me to question whether he made an unbiased decision in their hearings,” she wrote in her complaint.

Amos has often refused to lower bond amounts for migrant trespassing defendants. In December, he told one man, who had been imprisoned for more than 100 days and could not afford to post bond to be released and sent back to Mexico, that the $2,500 in cash the migrant would have to front was “not that much money.”

A former Concho County judge, 80-year-old Amos was tapped by the Kinney County judge to oversee a large group of the migrant trespassing cases in the county that has most zealously prosecuted them. Kinney County, a rural border county with conservative leadership, has imprisoned thousands of men on trespassing charges under Abbott’s border security initiative, Operation Lone Star.

[Hundreds of migrants accused of trespassing languish in Texas prisons. A county judge’s new approach might prolong their detention.]

The county’s leaders are staunchly conservative, labeling the immigration crisis an invasion and often publicly slamming President Joe Biden’s immigration policies. The county’s government website prominently links to a “defend our borders” fundraising site featuring the county judge, sheriff and misdemeanor prosecutor. The previously sleepy region has reported more break-ins with the increase in immigration, and state police often speed through town chasing suspected smugglers.

Last summer, the Republican governor flooded several border counties with state police to arrest and imprison single male migrants for allegedly trespassing on private property in an effort to push back against a sharp rise in illegal immigration. The number of people crossing the border, many of whom are seeking asylum, has continued at record levels.

The arrest practice has been marred by controversy from the start. Continual mistakes by police, prosecutors and judges led to wrongful arrests and hundreds of men being illegally imprisoned, in violation of state due-process laws. The U.S. Department of Justice is investigating the trespassing arrest initiative after complaints of discriminatory arrest practices.

After their arrests in Kinney County, migrants have spent weeks or months in state prisons converted into jails for immigration-related crimes. Those men are unable to post bond to be released — typically to be deported — before they can get before a judge to plead guilty or ask for a reduced bond in the backlogged courts.

Originally, the region’s administrative judge, Stephen Ables, had assigned three visiting judges — two Republicans and a Democrat — to help the county, which has only one misdemeanor judge and prosecutor and is used to handling dozens of cases a year, not thousands. But in December, Kinney County Judge Tully Shahan dismissed the three judges and asked Ables to instead assign five that he selected, including Amos, Ables told the Tribune at the time.

Shahan did not respond to questions Monday from the Tribune on whether he would call for Amos’ removal from his county’s bench. Ables’ office said he could not be reached because he is on vacation.

Shahan has previously argued that the decision to remove and reassign judges was up to Ables.

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This article originally appeared in The Texas Tribune at https://www.texastribune.org/2022/08/22/texas-migrant-judge-racist-slur/.

The Texas Tribune is a member-supported, nonpartisan newsroom informing and engaging Texans on state politics and policy. Learn more at texastribune.org.

Gov. Greg Abbott has appointed an indicted Austin police officer accused of using excessive force during 2020 protests to Texas’ regulatory law enforcement agency.

Justin Berry was among 19 Austin police officers indicted earlier this year in the protests spurred by the murder of George Floyd by a Minneapolis police officer. Berry is charged with two counts of aggravated assault by a public servant.

He also ran as a Republican for Texas House District 19 but lost in the primary runoff election this year. Abbott had endorsed Berry in the race, saying his “strong conservative values and experience stopping violent crime are exactly what we need in the Texas House.”

Now, at the governor’s hand, Berry will serve on the Texas Commission on Law Enforcement, which sets minimum licensing and training standards for police. Abbott did not immediately respond to The Texas Tribune's request for comment, but in a press release announcing Berry’s appointment Friday, he said the commission ensures “that the people of Texas are served by highly trained and ethical law enforcement, corrections, and telecommunications personnel.” Berry posted a statement to Twitter on Friday but did not respond to requests for comment.

“The demands and expectations of today’s professional police officer have never been so great,” Berry said about his appointment via Twitter. “I look forward to ensuring Texas has the best police officers in the world. Ensuring those who answer the call to serve their respective communities have the training and resources necessary to be set up for success are a priority to not only keeping Texan’s safe but ensuring trust is earned and maintained by those very communities.”

Sara Mokuria, co-founder of Mothers Against Police Brutality, said Abbott’s decision to appoint Berry to TCOLE is dangerous, not based in public safety and flies in the face of “what’s in the best interests of Texans.”

“This is an indicted officer who is now part of the body licensing and regulating law enforcement agencies,” Mokuria said. “It’s a move in the wrong direction, and it makes us unsafe. And, quite frankly, it’s a message that has been reiterated from the governor’s mansion over and over again, whether that be families in Uvalde who were not safe to send their kids to school, or all Texas residents during the winter storm. Our lives and our safety have consistently been put at risk because of this governor.”

Berry’s exact role in the Floyd protests is unclear, but Austin officers grievously wounded several people after shooting them with “less-lethal” ammunition in the head. That included a 20-year-old Black man police said was not their intended target after a man nearby tossed a water bottle and backpack up toward steps where police were in formation. Video also showed a 16-year-old Hispanic boy collapsing to the ground after police fired a beanbag bullet at him while he was standing alone near the freeway.

The violent police tactics during the protests against police violence were heavily criticized. Along with the indictments of 19 officers, the city of Austin agreed to a $10 million civil settlement with two men shot by police with beanbag rounds, including the 20-year-old.

Chas Moore, executive director of the Austin Justice Coalition, said Abbott appointing Berry despite his indictment “isn’t surprising.” Moore feels the governor said all of the politically correct things after Floyd’s murder but followed up with inaction.

“He’s never cared about making sure that everybody can be safe,” the activist said. “He doesn’t care about the national conversation that happened in 2020, where every state had some form of protest for George Floyd and Breonna Taylor, you know. He’s a diehard Texas Republican.”

Eleanor Klibanoff contributed to this story.

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This article originally appeared in The Texas Tribune at https://www.texastribune.org/2022/08/05/justin-berry-austin-police-excessive-force-greg-abbott/.

The Texas Tribune is a member-supported, nonpartisan newsroom informing and engaging Texans on state politics and policy. Learn more at texastribune.org.

By Jolie McCullough, The Texas Tribune

Texas’ juvenile prison system is nearing total collapse.

Its five lockups are dangerously understaffed, an ongoing problem that worsened dramatically last year when its turnover rate hit more than 70%. The state has desperately tried to recruit employees, but most new hires are gone within six months.

Teachers and caseworkers routinely work in security roles so the prisons’ nearly 600 youth can get out of their cells to go to the bathroom or take showers. Still, children have reported being left to use water bottles as makeshift toilets.

On weekends, youth are often locked alone in cramped cells with only a mounted bookshelf and a thin mattress on a concrete block for up to 23 hours a day. The lucky ones have a small window to the outside.

The agency has largely stopped accepting newly sentenced teenagers from crowded county detention centers, fearing it can’t even protect the children already in its care.

And more and more, children are hurting themselves — sometimes severely — out of distress or as a way to get attention in their isolation. Nearly half of those locked in the state’s juvenile prisons this year have been on suicide watch.

The emergency is the predictable result of a state agency that has been entrenched in crisis for more than a decade. The Texas Juvenile Justice Department is under federal investigation for an alleged pattern of mistreatment and abuse, and it has gone through several iterations of major and moderate reform following scandals marked by sexual abuse and violence, including a full restructuring in 2011.

But the agency has never escaped its problem of chronic understaffing, exacerbating systemic failures and spurring a vicious cycle of worsening conditions for imprisoned children, as well as more difficult work and longer hours for the staff that remains. The agency consistently loses detention officers at a faster rate than any other position in Texas government, outpacing other hard-to-fill jobs like adult prison officers and caseworkers for Child Protective Services.

The staffing crisis only worsened following the pandemic and the subsequent wave of resignations throughout the country. And although agency leaders believe the flood of departures has eased, they are left clinging to startlingly few workers. In June, less than half of the agency’s officer positions were filled by active employees.

Ultimately, the answer comes down to money. TJJD leaders and independent legislative analysts have said the agency first needs more money to hire and retain officers, while juvenile justice advocates and lawmakers have pushed for closing the state’s five prisons and investing in better care at the local level, or creating smaller, narrowly focused facilities in urban areas with more mental health resources.

But while the governor and lawmakers have denounced agency failures, replaced leadership and demanded change after abuse reports in recent years, their outcries are not typically reflected in the budget.

Unlike adult prisons and Child Protective Services, TJJD was not spared from a 5% budget cut ordered by state leaders at the beginning of the pandemic. As a result, the agency said it temporarily eliminated prevention and intervention services that juvenile justice experts say are the best way to keep children out of the criminal justice system.

The Legislature last year also rejected agency requests to, among other things, fund more services for detained children in suicidal crises or with other emergency mental health needs. And four times during the pandemic, Gov. Greg Abbott and the Legislature have taken away money the agency received in federal coronavirus relief funds to spend on other state expenses, including Abbott's ever-expanding, multibillion-dollar border security mission.

TJJD leaders were able to implement emergency 15% raises for staff earlier this year by postponing reentry programs and using savings from unfilled positions. But they said salaries are still too low, and the current economy puts them in competition for workers with far less strenuous jobs, like cashier and retail positions. Shandra Carter, the department’s interim leader, said she can’t attract and retain staff because the state hasn’t provided enough resources for the department to fulfill its responsibilities.

“The first step in addressing these shortages and moving us out of survival mode is to provide a competitive salary,” Carter said in an email to The Texas Tribune last month. “Having the necessary number of employees to ensure safety and supervision of youth will allow for enhanced training, opportunities for leadership development, and an increased ability to safely manage the milieu.”

(Carter took the helm of the agency in April, after its longest-serving director quit without notice on the same day Abbott most recently pulled the agency’s coronavirus relief funding for his border operation. The former director has not publicly given a reason for her departure.)

Advocates, agency leaders and legislative analysts acknowledge the crisis within TJJD has reached a breaking point. Alhough they have differing views on how to break out of a system of failure, they agree that without meaningful change — and funding — the next step for Texas’ juvenile prisons could be “systemic collapse,” according to an agency report last month.

“People are unwilling to imagine a different way, but clearly we need to,” said Brett Merfish of Texas Appleseed, a social justice advocacy group that has sought to phase out state-run juvenile prisons by investing in local systems instead.

“What is it going to take to say we need to do this?” she asked, noting the emergencies that are already taking place. “Is it going to be kids left in their cells for 22 hours a day? Is it going to take suicide rates going up by X%?”

Downward spiral

Texas’ youth prisons have changed significantly over the past two decades, most often spurred by repeated reports of sexual and physical abuse.

Following a sexual abuse scandal at one prison in 2007, the agency was rebranded and restructured to merge with local juvenile justice systems. After similar crimes made headlines a decade later, Abbott replaced much of the agency’s leadership and provided emergency funding and Texas Rangers to further investigate criminal behavior among staff.

In recent years, a new focus on keeping kids in trouble closer to home and a drop in juvenile arrests have led to far fewer kids being sent to a shrinking number of state-run prisons, a feat celebrated by both juvenile justice advocates and state leaders.

But the children who remain in the state’s five prisons are generally the most difficult to manage and care for, often because of violent behavior, severe mental health needs or both. The needs of the detainees have changed, and providing adequate safety and rehabilitation requires more resources.

The basketball court at Giddings State School. Understaffing forced Giddings and the Gainesville State School, the only two youth prisons with sports teams, to cancel their season last year. Credit: Jolie McCullough/The Texas Tribune

The facilities, which are in remote parts of the state with small labor pools, struggle to find and keep qualified mental health professionals and security staff.

“The large campuses in rural Texas, some of them have 200 and 300 acres,” said state Sen. John Whitmire, a Houston Democrat and chair of the Senate Criminal Justice Committee. “That was fine when you ran them as a school for nonviolent, disturbed kids. But they have not been modified … for youth that have committed more serious offenses.”

He noted that fights, sometimes gang-related, tend to break out when teens from separate dorms are moved around the campuses for things like education or recreation.

And as staff flee for easier work with the same pay, kids can be locked up almost all day, often exacerbating mental illnesses. Without at least two officers in a dorm of 16 detainees, teens have to remain in their individual cells.

The short-staffing impacts every piece of the youths’ prison lives.

Basketball and football seasons have been canceled. A popular program for imprisoned children to foster and train shelter dogs is on pause. Often, meals are eaten in dorms instead of the cafeteria, and students get work packets instead of being taught in classrooms.

Amy Mason’s 17-year-old son has been at the Giddings Unit, about 60 miles east of Austin, for about a year. She said he no longer can get out of his cell on weekends to call her or, sometimes, even use the bathroom.

“My son told me, ‘Mom, I don’t have any water or anything to drink because I’m having to urinate in my water bottles,” Mason said.

Other children at the Gainesville prison in North Texas have told state inspectors, who visit the five prisons once a month, that they have used cups or water bottles as makeshift toilets on weekends, according to inspection reports. An officer said kids were given extra cups and bottles specifically for this purpose. TJJD officials called the practice “entirely unacceptable” and said it had not been reported recently.

Under the harsh conditions, children are also more often engaging in suicidal behavior and self-harm, out of depression, protest or both.

Since 2018, Texas’ youth prison population has shrunk by more than a third, but the number of times teens were put on suicide watch jumped by nearly 50%, according to TJJD suicide assessment data obtained by the Tribune. If a teen is on suicide watch, an officer is at minimum required to check on them, often in their cell, at least every 10 minutes, according to agency policy.

This year, 45% of those held in Texas’ juvenile lockups have been on suicide watch, a percentage that has steadily grown over several years.

In the last year, teens have forced springs from pens into their necks or pieces of metal into their urethras, according to inspection reports. Many have used ligatures to strangle themselves.

Some told inspectors they hurt themselves as a means to get relief from their isolation. They were distraught about being left in their cells so much of the time and said if multiple people in a dorm were placed on suicide watch, it would typically lead to a second officer being assigned to them — meaning they could get out of their cells.

“Usually when people talk about suicides, it’s a cry for help,” said Camille Gibson, executive director of the Texas Juvenile Crime Prevention Center at Prairie View A&M University. “And if they don’t have staff, and they’re being locked up for several hours a day on top of whatever problems they have going on, I’m not surprised they’d be making a cry for help.”

Last month, Giddings’ medical staff said several of the unit’s fewer than 100 boys had been taken to the emergency room this year after suicide attempts.

Having to more often resort to basic supervision of teens without additional programming or activities has raised not only suicidal behavior but aggressive tendencies, which in turn leads to even more employees quitting, according to a legislative analysis.

The result is a lack of control over the workforce. Employees regularly skip their shifts, knowing the agency would be hard pressed to fire them, officials reported at an advisory council meeting. And new staff are often thrown into the job without adequate training just to fill the gaps.

“They’re kind of grabbing any and everybody who is willing to do the work,” said one officer who asked to remain anonymous because he was not permitted to speak to the media.

He began working at a youth prison this summer and said he was taken out of training after only a week to work in the prison’s control room after a COVID-19 outbreak sickened most of the staff. The agency seemed to be grasping to put bodies in roles, he said, and often staff don’t know how long they’re working or what they’re doing until the last minute.

“They let us know on Friday that on Monday we would be working the [control room], and they gave us no training on it,” he said. “They weren’t sure where we were going to be or what we were going to do until literally we were walking out the door.”

Carter acknowledged that new hires are given the minimum training necessary in the staffing emergency. She said employees are quickly placed in authoritative positions “out of sheer need.”

“The instability, lack of safety, and low morale causes significant churn of new hires, furthering the crisis,” she said via email. “Frustration and fatigue run high which can contribute to staff making poor decisions. A lack of necessary staff also decreases peer monitoring that comes naturally when a full team is working together. This can increase opportunities for predatory staff to engage in abuse or exploitation.”

The agency in July reported the arrests of three officers on official oppression charges for allegedly using excessive force against detained teens.

“We got to have a plan”

Last month, Carter halted all intake of children into TJJD from local detention centers, which have also recently struggled with maintaining employees. Texas’ youth prisons couldn’t take any more children, Carter said, because the state agency wouldn’t be able to guarantee their safety. Since then, the agency has accepted a handful of children as spots open up, but more than 100 children remain in county detention centers waiting to be moved into the state system.

The state of crisis has led the agency to scrap planned programs to help teens avoid being arrested again when they are released, and it canceled therapeutic programming targeting violent behavior. The intensive program, which aims to teach teens how to manage their emotions and reactions to stress while keeping them out of isolation, is one of three anti-violence programs that coincided with a 33% reduction in acts of aggression from 2020 to 2021, the agency reported last year.

One local juvenile probation chief responded to an agency survey saying county employees who work in juvenile justice don’t believe kids “are getting anything from TJJD commitment but incarceration.”

With enough staff on campus on July 20, detainees walk towards the Giddings’ gym for recreation. Credit: Jolie McCullough/The Texas Tribune

Despite the loss of programming and safety in the units, Abbott has not personally spoken out on the move to halt intake this month. When asked about the crisis last month, his staff said that the governor considers safety at TJJD a priority, while defending repeated transfers of money away from the department by saying it had a net-zero impact on the budget.

On Monday, an Abbott spokesperson said the governor will support TJJD’s “request to increase the salaries needed to hire and retain a qualified workforce” when lawmakers set a new budget next year.

For agency leaders and legislative analysts conducting a decennial review of whether TJJD should continue to exist under the state’s Sunset Review process, one answer to TJJD’s problems is more money from the state. The agency gets about $130 million a year for its state-run lockups and halfway houses. Another nearly $190 million goes toward community services, including probation, parole, and other oversight and administrative roles.

The agency was able to make permanent the emergency 15% pay raise implemented in April for all officers, bumping starting annual salaries up from around $36,200 a year to $41,700. Before the raise, Carter said, the entry-level pay for an officer at Giddings was comparable to working at the nearby Buc-ee’s as a cashier.

The new salary puts TJJD starting salaries about on par with adult prison officers.

In the last few months, agency officials say they have been able to “stanch the bleeding” of officers fleeing the job. But the amount of remaining employees is startlingly low, raising the risk of burnout as teachers and case managers continue to work security roles and mandatory overtime shifts continue.

Staffing data obtained by the Tribune showed there was another jump in officers quitting in June. TJJD said the loss was offset by new hires.

In their routine review of the functions and efficacy of the agency, Sunset analysts said lawmakers need to commit to investing in TJJD, allowing it to pull itself out of crisis by retaining staff and continuing to transition toward keeping troubled children closer to home.

“Only then can Texas make the vital transition toward fewer large, scandal-ridden state facilities in the future,” the state report said.

Although the agency has focused primarily on increasing officer salaries as a crisis measure, Whitmire and advocates are pushing for more substantial change. Simply investing more money into a failing agency, they said, will lead to more failure.

“They want more money for doing the same old, same old,” Whitmire said. “We got to have a plan.”

The senator hopes that, with a Sunset Review and a windfall of money for lawmakers to manage next year, the agency can finally begin the move away from large, rural facilities and invest in at least two smaller, urban lockups and a specialized mental health facility.

His vision doesn’t go as far as that of juvenile justice advocates, who have pushed to close all state-run youth prisons within 10 years. Several organizations hope the government can instead provide necessary treatment and services in smaller facilities managed by teens’ home communities.

“TJJD has serious problems, and serious problems require serious and systemic reform,” read a June letter to legislative analysts from Texas Appleseed, Disability Rights Texas, Texas Network of Youth Services and Texans Care for Children. “Raising salaries is a short term patch and alone will not allow for TJJD to shift its focus from crisis management to the worthy tasks of bolstering regionalization and diversion amongst the counties.”

For Gibson at Prairie View A&M, the biggest question is whether policymakers will decide in next year’s legislative session to invest in preventive treatment, providing care to families and children before they are introduced to the juvenile justice system.

“This is a problem that has been developing over years,” she said. “We just need to decide that this is important. It’s not a particularly flashy subject right now, but if crime is a problem, then this is important.”

For 24/7 mental health support in English or Spanish, call the Substance Abuse and Mental Health Services Administration’s free help line at 800-662-4357. You can also reach a trained crisis counselor through the National Suicide Prevention Lifeline by calling or texting 988, or you can reach the Crisis Text Line by texting “HOME” to 741741.

Disclosure: Prairie View A&M University, Texans Care for Children and Texas Appleseed have been financial supporters 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.

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This article originally appeared in The Texas Tribune at https://www.texastribune.org/2022/08/02/texas-juvenile-prisons-crisis/.

The Texas Tribune is a member-supported, nonpartisan newsroom informing and engaging Texans on state politics and policy. Learn more at texastribune.org.

Four years after an armed 17-year-old opened fire inside a Texas high school, killing 10, Gov. Greg Abbott tried to tell another shell-shocked community that lost 19 children and two teachers to a teen gunman about his wins in what is now an ongoing effort against mass shootings.

“We consider what we did in 2019 to be one of the most profound legislative sessions not just in Texas but in any state to address school shootings,” Abbott said inside a Uvalde auditorium Wednesday as he sat flanked by state and local officials. “But to be clear, we understand our work is not done, our work must continue.”

Throughout the 60-minute news conference, he and other Republican leaders said a 2019 law allowed districts to “harden” schools from external threats after a deadly shooting inside an art classroom at Santa Fe High School near Houston the year before. After the Uvalde gunman was reportedly able to enter Robb Elementary School through a back door this week, their calls to secure buildings resurfaced yet again.

But a deeper dive into the 2019 law revealed many of its “hardening” elements have fallen short.

Schools didn’t receive enough state money to make the types of physical improvements lawmakers are touting publicly. Few school employees signed up to bring guns to work. And many school districts either don’t have an active shooting plan or produced insufficient ones.

In January 2020, the Uvalde Consolidated Independent School District received $69,000 from a one-time, $100 million state grant to enhance physical security in Texas public schools, according to a dataset detailing the Texas Education Agency grants. The funds were comparable to what similarly sized districts received.

Even with more funds and better enforcement of policies, experts have said there is no indication that beefing up security in schools has prevented any violence. Plus, they said, it can be detrimental to children, especially children of color.

“This concept of hardening, the more it has been done, it’s not shown the results,” said Jagdish Khubchandani, a public health professor at New Mexico State University who studies school security practices and their effectiveness.

Khubchandani said the majority of public schools in the United States already implement the security measures most often promoted by public officials, including locked doors to the outside and in classrooms, active-shooter plans and security cameras.

After a review of 18 years of school security measures, Khubchandani and James Price from the University of Toledo did not find any evidence that such tactics or more armed teachers reduced gun violence in schools.

“It’s not just guns. It’s not just security,” Khubchandani said. “It’s a combination of issues, and if you have a piecemeal approach, then you’ll never succeed. You need a comprehensive approach.”

Insufficient active-shooter plans

Since the shooting, GOP lawmakers have repeatedly suggested limiting access to schools to one door.

“We’ve got to, in our smaller schools where we can, get down to one entrance,” Lt. Gov. Dan Patrick offered at the press conference Wednesday. “One entrance might be one of those solutions. If he had taken three more minutes to find that open door … the police were there pretty quickly.”

There are still questions about the timing and details of the tragedy, however, including whether the shooter busted a lock to get into the school or if a door was unlocked. A state police official reported Thursday that the door appeared to be unlocked but that it was still under investigation.

Khubchandani and education advocates said locking doors and routing everyone through one entrance is already standard practice in most districts. And safety leaders said locking exterior doors is a best practice, but it’s one strategy that needs to be strictly enforced.

“Sometimes convenience can take priority over safety and you can have a plan in place, you can have policies in place,” said Kathy Martinez Prather, director of the Texas School Safety Center at Texas State University. “They’re only as effective as they’re being implemented.”

At Wednesday’s press conference, Abbott emphasized that the package of school safety laws passed in 2019 required school districts to submit emergency operations plans to the Texas School Safety Center and make sure they have adequate active-shooter strategies to employ in an emergency.

State law dictates that districts must be able to show how they will prepare for, respond to and recover from disasters like active threats, but also extreme weather and communicable disease. These plans must include training mechanisms, communication plans and mandatory drills. Schools must create safety committees and establish a way to assess threats. These are known as emergency operations plans. As part of those, schools need active-shooter plans.

But a three-year audit by the center in 2020 found that out of the 1,022 school districts in the state, just 200 districts had active-shooter policies as part of their plans, even though most districts had reported having them.

That same audit revealed 626 districts did not have active-shooter policies. Another 196 had active-shooter policies, but auditors found those plans were insufficient.

In addition, only 67 school districts had viable emergency operations plans overall, the report found.

Martinez Prather wouldn’t say if Uvalde’s emergency plan was considered adequate because of ongoing investigations into the shooting. But said the center’s review did not find any areas of noncompliance.

The audit reviewed school districts’ emergency plans in June 2020, and Martinez Prather said she was “absolutely” surprised that so many schools did not have clear-cut plans, especially after the Santa Fe shooting and others around the country.

“Our attention to this issue should not be as close to the nearest and latest school shooting,” she said. “We need to keep sending that message that this can happen at any point in time and to anybody.”

She said the center has spent the last year and a half following up with schools to get their plans up to standard.

Arming teachers and staff with guns

Texas leaders have already shunned the idea of restricting gun access in the aftermath of the Uvalde shooting. In fact, in recent years, Texas lawmakers have loosened gun laws after mass shootings.

Instead, lawmakers point to the nearly decade-old school marshal program in Texas as another measure to deter and prevent mass shootings. That program was created in response to the deadly shooting at an elementary school in Newtown, Connecticut, that left 26 people dead, including 20 first-graders.

Designated school employees who take an 80-hour training course and pass a psychological exam are allowed to keep a firearm in a lockbox on school grounds, an idea most attractive to rural schools in areas where law enforcement response can take longer.

After the school shooting in Santa Fe, state lawmakers removed the cap that limited schools to one marshal per 200 students. Today, according to the Texas Commission on Law Enforcement, which oversees the training for the program, there are 256 marshals across the state.

While lawmakers tout it as a potential tool to prevent mass shootings, just 6% of school districts use it, according to a report from the Texas School Safety Center. Martinez Prather at the Texas School Safety Center said many school districts say it’s expensive and the training is time-consuming for educators.

Meanwhile, 280 school districts are utilizing an unregulated option known as the Guardian Program, which allows local school boards to approve individuals in schools to carry concealed weapons. Each “guardian” must have a handgun license and take 15 to 20 hours of specialized training by the Texas Department of Public Safety.

Nicole Golden, executive director of Texas Gun Sense, said she’s concerned by the “minimal” level of training school staff go through before they are approved to have a weapon in the classroom.

“These aren’t law enforcement officers,” she said. “These are school staff who have some training, and there’s really not a lot of data to support that that’s the safe direction to go in.”

Plus, Golden said, placing more guns on school grounds can be problematic when data shows students of color are disproportionately disciplined.

When lawmakers decided to expand the number of marshals in Texas schools in 2019, Black students and parents said the idea made them feel less safe in school, knowing they are disciplined more than other students.

The study from Khubchandani and Price pointed to a 2018 shooting at a high school in Kentucky where the shooter killed two and injured 14 students in 10 seconds.

“Armed school personnel would have needed to be in the exact same spot in the school as the shooter to significantly reduce this level of trauma,” the researchers wrote. “Ten seconds is too fast to stop a school shooter with a semiautomatic firearm when the armed school guard is in another place in the school.”

$10 per student for safety

Big changes often take big money, and officials have noted that the 2019 school safety bill gives about $100 million per biennium to the Texas Education Agency. The agency then distributes the money to school districts to use on equipment, programs and training related to school safety and security, a little less than $10 per student based on average daily attendance. The money can be used broadly, ranging from physical security enhancements to suicide prevention programs.

According to a self-reported survey of districts by the Texas School Safety Center, more than two thirds of school districts have used this money for security cameras. 20% used it for active-shooter response training. Nearly 40% of districts installed physical barriers with the allotment.

But Zeph Capo, president of the Texas chapter of the American Federation of Teachers, said that money wasn’t enough to pay for the more expensive projects lawmakers were suggesting.

“Districts ended up spending money on some programs, some electronic AV equipment, but I don’t think it was nearly enough to do what needs to be done in most of the schools, which is really change the structures of the buildings so there’s better control over entrance and egress,” he said, noting that AFT believes more gun restrictions is a better solution.

The TEA also received a separate one-time $100 million pool of money to provide grants to districts specifically for physical security enhancements, like metal detectors, door-locking systems or bullet-resistant glass.

It’s unclear how Uvalde CISD spent the $69,000 it received from the state to enhance its physical security. School officials did not respond to questions Wednesday. As of the May 2 report, the district had spent about $48,000 of the grant, which is set to end at the end of the month.

Other remote town school districts received comparable grants per their student population, according to an analysis by The Texas Tribune. For example, the Sulphur Springs Independent School District in East Texas has only a slightly larger student population and received about $71,000 in grant funds.

According to a district document, Uvalde CISD, which enrolls around 4,100 students, had a variety of so-called hardening measures in place that lawmakers and school safety leaders recommend.

The district employed four district police officers, installed perimeter fencing meant to limit access around schools, including Robb, and instituted a policy that all classroom doors remain locked during the day.

There are campus teams that identify and address potential threats, and schools hold emergency drills for students “regularly.” The district employed a threat reporting system for community members to raise concerns. Some schools had security vestibules at their entrances and buzz-in systems to get inside from the outdoors.

But a security vestibule, which is basically a secure lobby to the school, can be a huge expense for school districts already tight on money. In 2019, the Waller Independent School District estimated that the addition of two of these entrances to the junior high school would cost $345,000. Security cameras at a small elementary school can cost more than $20,000, according to industry experts.

In recent years — even before the Santa Fe shooting — school districts have begun to rely on bond proposals to find the money to implement some of these changes.

But Texas voters have expressed hesitancy at the ballot box to approve such bonds in recent years, which the Texas Association of School Boards attributed to the lingering pandemic and political polarization. Recent changes by the Texas Legislature have also complicated bond requests for schools after it started to require districts to write, “This is a property tax increase,” on bond project signs, even when the proposals wouldn’t affect the tax rate.

Overall, Monty Exter, a senior lobbyist with the Association of Texas Professional Educators, said the per-student allotment and one-time grants set aside for school security could never pay for the types of construction projects lawmakers have touted publicly in the wake of the shooting.

“Thinking about making significant changes to 8,000-plus campuses, $100 million doesn’t necessarily go that far,” he said.

Disclosure: The Association of Texas Professional Educators, Texas AFT and the Texas Association of School Boards have been financial supporters 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.

Since then, prison officers, state troopers and local law enforcement have swarmed Leon County in Central Texas, using horses, dogs, and helicopters equipped with thermal imaging to search for 46-year-old Gonzalo Lopez, a prison spokesperson said. But so far, officials have come up empty.

The unusual escape and extended manhunt have prompted state and federal officials to offer a $50,000 reward for information leading to Lopez’s capture, with the lion’s share coming from the Texas Department of Public Safety. Lopez is serving two life sentences for capital murder and attempted capital murder out of Hidalgo and Webb counties.

“We will not rest until Lopez is caught,” Bryan Collier, executive director of the Texas Department of Criminal Justice, said in a statement Saturday.

Gonzalo Lopez escaped custody on May 12, 2022. Credit: TDCJ

Lopez was sentenced to life in prison in 2006, after he was convicted of capital murder in the 2005 death of José Guadalupe Ramirez. According to court records, Lopez confessed to police that he killed the man on an order from a Mexican drug cartel. Lopez was later given another life sentence for attempted capital murder during a 2004 car chase in Webb County. A court ruling said Lopez was the passenger in a car when the driver fled during an attempted traffic stop. Law enforcement officers said they were shot at from the driver’s side of the vehicle.

On Thursday afternoon, Lopez was aboard a bus with 15 other prisoners and two veteran prison officers. He was headed from the Hughes Unit in Gatesville, where he is housed, to Huntsville for a medical appointment, according to TDCJ spokesperson Robert Hurst.

On the bus, the prisoners were handcuffed and separated by metal caging from the armed driver and a second officer in the rear of the bus carrying a shotgun. Hurst said such a setup is typical for prisoner transports.

Somehow, however, Lopez managed to get out of his handcuffs. And without being detected by either guard, the prisoner used a sharp object to cut through the metal door separating the prisoners from the driver and crawled into the driver’s section, Hurst said. A fight ensued, and Lopez stabbed the driver in the hand and chest with the unknown object.

The driver was able to stop the bus, and the fight between the two men quickly moved outside, Hurst said. Lopez got back into the bus, seemingly at about the time the officer in the rear leapt out the back after realizing there was a fight. With no officer on board, Lopez drove off.

The officer armed with a shotgun quickly shot out the rear tires, however, so after about a mile, Lopez lost control and the bus veered into a culvert on the side of the road. Lopez fled on foot through a cow pasture, Hurst said. The two officers caught up and fired at him with their sidearms and the shotgun, though Hurst said it didn’t appear Lopez was hit.

That was the last any official has seen of Lopez.

Hurst couldn’t explain how Lopez managed to get out of his handcuffs, or have the time to cut through metal in the bus and crawl into the driver’s section undetected.

“We’re still investigating,” he said.

But beyond Lopez’s remarkable escape is his continued absence, despite a quickly implemented search and the numerous police agencies on the hunt.

“We immediately went into emergency mode with an escaped inmate on the ground,” Hurst said, noting that TDCJ personnel rapidly set up a perimeter with the help of the Leon County Sheriff’s Office and a local police officer.

On Friday, DPS put Lopez on the state’s Most Wanted list, offering a reward for $7,500. The next day, the state police agency raised the amount to $35,000, with the U.S. Marshals Service and the Texas prisons investigative branch offering another $10,000 and $5,000, respectively, TDCJ reported.

On Monday, Hurst said the agencies have not yet received any credible tips. The agency has asked anyone with information on Lopez to call 1-800-832-8477 or 936-437-5171.

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This article originally appeared in The Texas Tribune at https://www.texastribune.org/2022/05/16/escape-texas-prison-bus/.

The Texas Tribune is a member-supported, nonpartisan newsroom informing and engaging Texans on state politics and policy. Learn more at texastribune.org.

Listen to the conversation between state Rep. Jeff Leach, a Plano Republican, and Lucio, whose death sentence has drawn international outcry as more people come to doubt her guilt in the death of her 2-year-old daughter, Mariah Alvarez.

Here is a transcript of their conversation:

Lucio: Hello.

Leach: Melissa.

Lucio: Yes.

Leach: Hey, this is Jeff Leach.

Lucio: Yes, sir.

Leach: How are you today?

Lucio: I'm doing fine. How are you?

Leach: Good, have you heard the news?

Lucio: No, what?

Leach: You haven't heard the news yet?

Lucio: No. What happened?

Leach: The Court of Criminal Appeals issued a stay of your execution for Wednesday.

Lucio: Are you serious!? Are you serious!? [Laughing and crying.] When did this happen?!

Leach: We just got word about 15 minutes ago.

Lucio: Oh my God. [Laughing and crying.] That is wonderful. Oh my God. What does that mean?

Leach: [Laughing.] Well, it means you're going to wake up on Thursday morning.

Lucio: Oh my goodness! [Laughing and crying.] Oh thank you, God.

Leach: You're not making the trip to Huntsville on Wednesday, and the the order was very strong in that it appears that you're going to get a new trial at the very least, they —

Lucio: Oh my goodness. That is so wonderful. Thank you so much!

This article originally appeared in The Texas Tribune at https://www.texastribune.org/2022/04/25/melissa-lucio-execution-reprieve/.

The Texas Tribune is a member-supported, nonpartisan newsroom informing and engaging Texans on state politics and policy. Learn more at texastribune.org.

The Texas Court of Criminal Appeals on Monday halted the scheduled Wednesday execution of Melissa Lucio, whose death sentence has drawn international outcry as more people come to doubt her guilt in her 2-year-old daughter’s death.

The court sent Lucio's case back to the Cameron County court where she was originally tried to weigh whether she is actually innocent, as well as whether the state presented false testimony at trial and hid evidence from the defense. The court's ruling came minutes before the Texas Board of Pardons and Paroles was scheduled to vote on whether to recommend that the governor delay Lucio's execution for at least 120 days.

Questions over Mariah Alvarez’s death and Lucio’s role in it have lingered since the now 53-year-old mother was sentenced to death in 2008. In recent months, concerns about Lucio’s possible innocence — greatest among them whether Mariah’s fatal head trauma was caused by abuse or an accidental fall down the stairs — have only been amplified.

More than two-thirds of the Texas Senate and a majority of the Texas House of Representatives pleaded for the parole board and governor to halt Lucio’s execution. The lawmakers have been joined by an ever-growing list of people, including at least five of Lucio’s former jurors.

Lucio’s supporters insist there are too many unaddressed problems with the police investigation and her trial to carry out her death sentence without more investigation. At Lucio’s trial, the prosecution relied almost entirely on an ambiguous “confession” obtained after hours of police interrogation, and the trial judge barred expert testimony that might have explained why she would admit to police things she didn’t do.

In 2007, Lucio’s family called 911 after they said Mariah was found unresponsive at their Harlingen apartment, court records show. The toddler wasn’t breathing, and her body was covered with bruises and what police believed to be a bite mark. An X-ray revealed her arm had recently been broken.

The medical examiner concluded that Mariah was severely beaten and ruled her death a homicide caused by blunt force head trauma. At least one other pathologist who has examined the evidence since disagrees with the definitive finding of abuse and homicide.

Police focused on Lucio as the primary suspect, since they believed she was most often alone with the child. She and her other children told police that the toddler had fallen down the stairs at their apartment a couple of days earlier. At first, Mariah seemed fine, Lucio said, but over time became lethargic and would not eat.

For hours during a late-night interrogation on the day her child died, Lucio repeatedly insisted that she did not hurt Mariah or any of her 12 children. But after about three hours of police accusations, Lucio admitted, when prompted by police, to spanking and biting Mariah. She said she guessed she spanked Mariah out of frustration, a word police repeatedly suggested to her, though she continued to deny any involvement in a head injury.

“What do you want me to say? I’m responsible for it,” Lucio said when a Texas Ranger pushed her on the apparent bite mark on Mariah’s back.

The admissions to child abuse, which Lucio has since recanted, were the main evidence presented at trial, where jurors found she was guilty of capital murder and worthy of a death sentence. Lucio’s advocates have since condemned the trial judge for not letting the jury hear critical testimony from mental health professionals that could have explained why Lucio, a longtime victim of sexual abuse and domestic violence, would falsely confess.

Despite the wide-ranging concerns with Lucio’s police interrogation and trial, appellate courts have previously upheld her conviction and sentence, even though a majority of judges on a conservative court found the case troublesome.

Although he was not district attorney when Lucio was convicted, Cameron County District Attorney Luis Saenz did request the execution date and has the power to withdraw the request. During a heated exchange with a bipartisan group of lawmakers pushing to halt Lucio’s execution, Saenz initially stated he would not intervene.

As outrage has built to a crescendo over Lucio’s case, Saenz has previously stated — and reaffirmed in the hearing — that he stood by the process that led to Lucio’s conviction and the many court rulings since that have upheld her death sentence.

But after about an hour of urging from the lawmakers, Saenz’s stance shifted. He said he believes his intervention will be unnecessary because the Texas Court of Criminal Appeals will likely stop Lucio’s execution. If it doesn’t, he said he would, though he didn’t provide details.

“If defendant Lucio does not get a stay by a certain day,” he said, “then I will do what I have to do and stop it.”

Because of Saenz’s conflicting statements, and without any court motions or rulings,it’s still not certain Lucio’s execution will be stopped. Lucio’s lawyer, Tivon Schardl, seemed skeptical outside the committee room but said he would take Saenz at his word. Saenz’s office did not immediately respond to questions following the hearing.

State Rep. Jeff Leach, a Plano Republican and chair of the interim Criminal Justice Reform Committee, said the lawmakers would hold Saenz to his word.

“My understanding of his remarks to the committee were that if we don’t get a stay or clemency issued … then he will step in and withdraw his request for an execution date,” Leach said after the hearing. “That was unequivocal to the committee, and we got it on tape.”

Reasonable doubts have lingered over Lucio’s guilt since the day 14 years ago she was convicted of murdering her daughter, questions that will remain even if her April execution date is canceled.

It’s widely debated whether the fatal head trauma that killed 2-year-old Mariah Alvarez was an accident, and, if it wasn’t, who inflicted the injury. The case against Lucio was built almost entirely around an ambiguous “confession” obtained after hours of police interrogation, and the judge at her trial barred expert testimony that might have explained why she would admit to police things she didn’t do.

For now, Texas plans to execute Lucio in two weeks. She would become the first Latina executed by the state in the modern era of the death penalty and the first woman killed by Texas since 2014.

As the 53-year-old’s execution date nears, concerns about her possible innocence — greatest among them whether Mariah’s death was caused by abuse or an accidental fall down the stairs — have only been amplified.

Forestalling Lucio’s impending execution has become an international cause, her name and picture splashed across newspapers and websites around the world. An ever-growing lineup of her former jurors, foreign ambassadors, celebrities and more than half of the Texas House of Representatives has urged the state parole board and governor to spare Lucio’s life.

There are too many unaddressed problems with the police investigation and her trial to carry out her death sentence without more investigation, her supporters insist.

State Representative Victoria Neave Criado speaks at a rally organized at Dallas City Hall to free Melissa Lucio, a Latina mother on death row who’s execution date is set to April 27, 2022. Credit: Shelby Tauber for The Texas Tribune

Demonstrators chant to free Melissa Lucio at a rally organized at Dallas City Hall on Thursday. Credit: Shelby Tauber for The Texas Tribune

First: State Rep. Victoria Neave, D-Dallas, speaks at a rally at Dallas City Hall to free Melissa Lucio on Thursday, April 7. Last: Demonstrators chant to free Melissa Lucio at a rally organized by organized by Somos Tejas, a Latino community activist group, in coordination with Neave and Lucio’s family as they visited Dallas. Credit: Shelby Tauber for The Texas Tribune

“The trial left me thinking Melissa Lucio was a monster, but now I see her as a human being who was made to seem evil because I didn’t have all the evidence I needed to make that decision,” Melissa Quintanilla, the foreperson on Lucio’s jury, said in an affidavit to the parole board this week. “Ms. Lucio deserves a new trial and for a new jury to hear this evidence.”

Four more of Lucio’s 12 jurors have also asked the parole board and the governor to stop Lucio’s execution.

Outside of court intervention or a motion from Saenz, Lucio’s execution can be stopped if the Texas Board of Pardons and Paroles recommends either changing her sentence from death to life in prison or postponing the execution date for up to 120 days. Gov. Greg Abbott would have to accept the board’s recommendation, which is not expected until two days before Lucio’s April 27 execution date. Abbott also has the power on his own to delay the execution for 30 days, but he has never exercised that authority in a death penalty case during his time in office.

Pressure has also been mounting on Saenz to withdraw Lucio's death warrant. Before Tuesday's hearing, he indicated he did not intend to halt the execution.

“Melissa Lucio has already thoroughly litigated the issues raised during her defense, including the theories that her statement was coerced and that her two-year-old daughter Mariah Alvarez fell down the stairs. The jury rejected both of these arguments,” Saenz said in a statement to The Texas Tribune last week. “As officers of the court and servants of our community, we cannot allow the rule of law to be suspended and substituted by a court of public opinion.”

State and federal courts have dismissed Lucio’s petitions at almost every step of the appeals process, which is meant to minimize the chance of a wrongful execution. For the prisoner’s lawyers, as well as a majority of judges on a conservative federal court, some of those rejections shine a light on broader problems with the death penalty and how hard it is for courts to overturn even weak convictions.

“To these eyes, this case is a systemic failure, producing a train of injustice which only the hand of the Governor can halt,” Judge Patrick Higginbotham, an appointee of President Ronald Reagan to the conservative U.S. 5th Circuit Court of Appeals, wrote in a footnote of the court’s latest denial for Lucio last month.

The “confession”

In 2007, emergency personnel rushed to a Harlingen apartment newly occupied by 38-year-old Lucio, her common-law husband and nine of her 12 children. The family had called 911 after finding Mariah unresponsive in the bedroom where she had been sleeping, according to statements given to police. The toddler wasn’t breathing, and her body was covered with bruises and what police believed to be a bite mark. An X-ray revealed her arm had recently been broken.

The medical examiner later concluded that Mariah was severely beaten and ruled her death a homicide caused by blunt force head trauma. At least one other pathologist who has examined the evidence since disagrees with the definitive finding of abuse and homicide.

The signs of child abuse led police to believe Mariah was murdered, and her mother — thought to be the person most often home alone with the child — was the prime suspect. The night of her daughter’s death, Lucio told police Mariah had fallen down the steps at their old apartment a couple days earlier. She said she only saw the aftermath, so didn’t know how many stairs Mariah had fallen down. At first, the child seemed fine, she said, but over time became lethargic and would not eat. Under police interrogation, pregnant with twins, Lucio vehemently and repeatedly denied ever abusing her daughter.

Until she didn’t.

After about three hours denying accusations hurled by multiple police investigators, Lucio began to agree with Texas Ranger Victor Escalon, who leaned in closely and spoke softly with reassurances, a video of the interrogation shows.

Lucio said she spanked Mariah but didn’t think she could have caused harm to the extent shown in the pictures of her child’s body that police kept pushing in front of her. When Escalon suggested Lucio bit Mariah, Lucio shook her head. When he pushed her again, she said she did. He asked her to explain.

“What do you want me to say? I’m responsible for it,” Lucio said.

For about two more hours, Lucio conceded to Escalon. She said she guessed she spanked Mariah out of frustration, a word police repeatedly suggested to her. She strongly denied responsibility for what Escalon believed was a pinch mark on Mariah’s vulva, but the Ranger insisted she “get it over with.” She stared at the photo of her daughter’s body and then commented.

“I guess I did it,” she said. When he asked how, she shrugged and said “Probably pinched her or something.”

Lucio consistently denied beating Mariah across the head, however, or knocking her head in any way. But police and prosecutors believed Lucio’s admissions to other abuses would lead a jury to infer she had also caused the fatal injury. They were right.

John Lucio speaks at Dallas City Hall on Friday at a press conference concerning his mother’s future. Credit: Shelby Tauber for The Texas Tribune

The conviction

At trial, Escalon told the jury he knew right away that Lucio was guilty. He saw a quiet woman, slouching her head down without asking for an attorney and arrived at his personal verdict.

“Right there and then, I knew she did something,” he said from the witness box.

He could tell from her body language and demeanor that she wanted to confess, he said, adding that “if you get somebody that is being honest, they’re going to be upset with you.”

Escalon’s testimony alarmed the lawyers who would later step in to handle Lucio’s appeals. Some of the techniques used in the interrogation are known to be coercive, her lawyers said, especially with vulnerable people. According to the National Registry of Exonerations, about 12% of convictions later found to be wrongful stem at least in part from false confessions.

“You’ve decided the person is guilty and the whole purpose is to get a statement of admission,” said Vanessa Potkin, director of special litigation at The Innocence Project, who said the idea of a “human lie detector” has also been renounced.

Escalon, now the South Texas regional director for the Texas Department of Public Safety, declined to comment for this story, instead referring questions to the Cameron County district attorney’s office.

Dental molds, finger nail clippings and Lucio’s ring were taken to seek matches to injuries on Mariah’s body, but none of the evidence was ever tested, according to trial testimony. With Lucio’s interrogation statements in hand, the prosecution didn’t need to test for things like DNA, the district attorney, Armando Villalobos, said at trial.

Villalobos would later be sent to federal prison for corruption in his office that occurred around the time of Lucio’s trial, found to have accepted bribes for lenient prosecutorial action.

Lucio has since recanted her admissions, and supporters have long argued they were false and coerced. Lucio’s lawyers intend to file new appeals based on new expert analysis that they say shows Mariah’s death, as well as much of the bruising on her body, could have been caused by a fall down the stairs and subsequent head injury.

“They just kept throwing so many words at me, and I just told them I’m responsible for Mariah’s bruises,” Lucio said in an interview for a documentary released in 2020. “They wanted to hear something.”

Lucio’s advocates also argue the jury never got to hear critical testimony that could explain why Lucio, a longtime victim of sexual abuse and domestic violence, might falsely confess. State district Judge Arturo Nelson refused to allow a social worker and psychologist to testify for Lucio’s innocence defense at trial.

Nelson found the clinical social worker unqualified to analyze body language — despite Escalon having done so without listed qualifications. And he said the psychologist’s expected testimony to cast doubt on Lucio’s statements wasn’t relevant because Lucio never admitted in the interrogation to killing her child, only abusing her.

It was that decision that rattled one of the most conservative appeals courts in the nation.

“The trial court’s conclusion was inconsistent with the reality of this trial,” a three-judge panel of the 5th Circuit Court of Appeals wrote in 2019. The judges added “the State’s argument that Lucio struck the fatal blow relied on an inference from the statements that she abused Mariah.”

In the years that followed Lucio’s convictions, Texas courts rejected her petitions alleging the witnesses’ exclusion kept her from presenting a complete defense of her innocence. Testimony shedding light on Lucio’s body language or explaining why an abused woman would behave a certain way under police interrogation, the Texas Court of Criminal Appeals found, had little relevance to how voluntary Lucio’s statement was.

In the federal appellate process, it was the 5th Circuit Court of Appeals that temporarily put the brakes on Lucio’s sentence. In 2019, the three-judge panel determined the judge’s decision was indeed harmful and intended to send the case back to lower courts to address the problem. But Texas asked for the full court to again weigh the case and, in a rare move, the judges accepted.

Ten of the court’s 17 judges agreed to deny Lucio’s appeal last year, with seven of those 10 joining an opinion that agreed with Nelson’s exclusion of the witnesses. They wrote that the psychologist’s report, which detailed what he was expected to testify, did “at no point … come close even to hinting that any of these statements were false.”

Three of the 10 denying judges, though, were still concerned with the trial judge’s decision. But they believed their hands were tied by the Antiterrorism and Effective Death Penalty Act, a controversial 1996 federal law passed in a tough-on-crime era that limits both the allowable number of death penalty appeals as well as their paths to success.

“The [dissenting judges] express well their view that there was expert testimony that, if jurors had only heard it, could have impacted the verdict. We are all, though, working within the constraints of AEDPA,” wrote Judge Leslie Southwick, a President George W. Bush appointee.

“This case, though, is a clear example that justice to a defendant may necessitate a more comprehensive review of state-court evidentiary rulings than is presently permissible,” he added.

Federal appeals in death penalty cases are meant to be a check against constitutional errors by state courts, according to Rob Owen, a former death penalty law instructor at the University of Texas at Austin. Since AEDPA passed, however, federal courts can’t rule independently on possible violations. Instead, Owen said, they must now defer to state courts’ rulings and can correct them only if the state court has “gone wildly out of bounds.”

“So ever since 1996, federal courts have been more limited in their power to correct errant state court judgements, and that’s what really I think what you see in Ms. Lucio’s case,” he said. “There’s a great risk in a case like this where a court seems to be saying there appears to be maybe an innocent person about to be executed, and we can’t do anything about it.”

John and his wife, Michelle, after a press conference in Dallas on Friday. Credit: Shelby Tauber for The Texas Tribune

A family in trouble

The life of Lucio and her family has never been without strain. She was raised by a single mother with five siblings, and her mother’s boyfriend sexually assaulted her for years starting at age 6, her lawyer reported at trial.

She got married at 16 and had five children before she was 24. Her husband was reportedly abusive physically and emotionally, and Lucio became addicted to cocaine.

After her husband abandoned her at age 26, she moved in with a new man, Robert Alvarez. She had seven more children, with Mariah being the youngest. Lucio’s older children reported Alvarez abused Lucio, and a school principal once reported he saw Alvarez punch her while the family was homeless, living in a park, according to court records.

Child Protective Services was routinely involved in the family’s life, with reports of neglect sometimes resulting in mediation, according to trial testimony. Lucio’s lawyers reported three of Lucio’s children were born with cocaine in their system, including Mariah.

Lucio and Alvarez’s children were removed by the state when Mariah was two weeks old. During Mariah’s time in foster care, she was found to have a physical disability that hampered her walking. Mariah had reportedly fallen on her head and been knocked unconscious in foster care. Lucio’s oldest son said the child’s disability was never disclosed to the family.

After two years of visitations and Lucio’s repeated negative drug tests, the children were returned three months before Mariah died. Lucio told police she had been clean for a year on the night her daughter died.

Multiple children told police shortly after Mariah’s death that Lucio never abused them, but they did point suspicion elsewhere for potential abuse or causes of the child’s death.

They said the boys were often violent with each other and sometimes the girls, including Mariah. Foster parents reported the boys bit and hit each other while they were in their care, according to Lucio’s appellate briefings. Lucio’s second-oldest daughter, 20 at the time of Mariah’s death, said she told police and Lucio’s lawyers that her 15-year-old sister would abuse Mariah when their parents weren’t around, including slamming her head on the ground a week before the child’s death.

“I can remember the noise it made to this day,” Daniella Lucio said in a sworn affidavit in 2018. She added that her 17-year-old brother and mother had tried to intervene in the sibling abuse, and she believed her mother admitted to the bruises because Lucio didn’t want her daughter to get in trouble.

One of the children, 9 at the time, told investigators that he saw Mariah fall down the stairs. Two months before Mariah’s death, a CPS case worker reported during a home visit that two of the teenaged girls were in the apartment alone with Mariah and her 3-year-old sister, according to a court briefing. The case worker noted with concern that the 3-year-old had started to go down the stairs unsupervised.

The reports from the children and CPS employee did not make it in front of the jurors, causing Lucio’s family to denounce her defense attorney, Peter Gilman. They faulted him for not calling the children, even those who were adults at the time, to testify on behalf of their mother. Their skepticism heightened when Gilman accepted a job to work for the prosecutor about a year after the trial. Gilman did not respond to questions for this story.

Aside from Saenz’s potential action, Lucio’s lawyers plan to file new appeals in court. But after years of rejections, they are also putting hope in the hands of the Texas parole board.

Aaron Michaels hugs John Lucio at Dallas City Hall on Friday. Michaels is the husband of Kimberly McCarthy, who was executed on death row in 2013. Credit: Shelby Tauber for The Texas Tribune

The parole board typically votes two days before an execution. Though it rarely recommends a delay of execution, it did so in 2019 for Rodney Reed, whose guilt is also widely doubted. The Court of Criminal Appeals stopped Reed’s execution hours later, however, leaving it unknown if Abbott would have accepted the board’s recommendation.

Even with the cards stacked against them, Lucio and her family remained hopeful even before Saenz’s change in position. John Lucio, the prisoner’s oldest son, has visited his mother regularly, he said at a public showing of the documentary on Lucio in an Austin church last month. He has been steadfast in his hope that Lucio’s execution date won’t come to pass, but he still has to hide his fear in his now-weekly visits to prison.

“What makes it harder is knowing that she is an innocent woman,” he said last month, surrounded by family members. “Knowing the fact that we have the evidence here to show and still we can’t get no help from the court systems.”

John Lucio cried throughout Tuesday’s hearing. Afterward, he said he wanted to believe Saenz when he said he would stop Lucio’s execution if need be, but he was still asking supporters to ask the parole board and governor to take action as well.

“I want to put that faith in him and believe that he’s not going to allow it to happen,” he said.

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This article originally appeared in The Texas Tribune at https://www.texastribune.org/2022/04/12/melissa-lucio-texas-execution/.

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A rural sheriff near the Texas border is under criminal investigation for allegedly having his deputies illegally seize money and a truck from undocumented immigrants during traffic stops.

Last month, investigators with the Texas Rangers and the Texas Attorney General’s Office raided four Real County Sheriff’s Office locations as part of an investigation into Sheriff Nathan Johnson, according to search warrants obtained this week by The Texas Tribune. The investigating Texas Ranger said Johnson admitted to regularly seizing money from undocumented immigrants during traffic stops, even if they were not accused of any state crime, before handing them over to United States Border Patrol agents.

One sheriff's deputy told investigators that “seizing currency from undocumented immigrants and the driver has been standard operating procedure for as long as he has been employed by the Real County Sheriff’s Office,” Texas Ranger Ricardo Guajardo wrote in the warrant requests.

Guajardo accused Johnson of felony-level theft by a public servant and abuse of official capacity, alleging the sheriff’s cash and vehicle seizures were in violation of the state’s relatively lenient civil asset forfeiture laws.

Johnson did not respond to specific questions Monday, stating that his and county attorneys are reviewing the newly released affidavit. In November, he told investigators money and cars are sometimes held as evidence for potential criminal cases, according to Guajardo. After his offices were raided in December, Johnson said in a Facebook post that he didn’t know what prompted the investigation, had not been arrested and would continue to serve his constituents.

“Especially in the last year, I have taken a strong stand against human smuggling, drug smuggling, and illegal alien traffic in our community and will continue to do so,” Johnson wrote.

It’s unclear if any charges have been or will be filed against Johnson. The attorney general’s office did not respond to questions Monday, and the Texas Department of Public Safety said it had no information to release.

The search warrants were carried out at two sheriff’s offices and two impound lots last month to seek evidence investigators believe will bolster their case against Johnson. The warrants include computers, cellphones, seized evidence regarding money or vehicles, financial statements and other data going back to 2017, when Johnson took office.

The investigation into the Republican sheriff is underway as a political firestorm rages over immigration policy, with the state and country facing record-high levels of U.S.-Mexico border crossings. Blaming the rise on President Joe Biden, Gov. Greg Abbott has sent thousands of state police and military personnel to “arrest and jail” people suspected of having crossed the border illegally on state criminal charges.

Real County is home to about 3,400 residents and is near but not on the border, sitting about 100 miles northeast of Del Rio, the epicenter of migrant crossings in Texas last year and a focus of Abbott’s border security operation.

In Texas, police can take cash and property believed to be related to criminal activity, even if the person involved is never charged with a crime. Such seizures, however, require an already controversial forfeiture process during which prosecutors must file a civil lawsuit against the property for police to keep it.

Johnson, however, told Guajardo in November that he did not initiate such proceedings, the warrant stated. Instead, in two instances when Real County was assisted by neighboring law enforcement agencies, the sheriff classified seized property as abandoned or labeled it as evidence for potential charges, according to the warrant.

Aside from potential criminal charges, avoiding the state’s forfeiture laws creates constitutional concerns and bad optics, according to Arif Panju, the managing attorney for the Texas office of the Institute for Justice, a legal organization against civil asset forfeiture.

“If you’re doing it outside the judicial process, you can see the perverse incentive that would exist,” Panju said. “If you could seize these things, not go to a court, seize it unilaterally and then keep it in your budget … that is again policing for profit with zero oversight.”

Guajardo began investigating Johnson in October after discussions with the attorney general’s office, the warrant said, focusing on two traffic stops.

Body camera footage of a May 2021 traffic stop taken by a sheriff's deputy from neighboring Edwards County showed Johnson directing his deputies to seize money and a truck from undocumented immigrants. The seized money was to be filed as abandoned cash and deposited into the Real County general fund, Guajardo detailed. Johnson said he would try to find the truck’s registered owners, but after 30 days the vehicle would also be considered abandoned.

During another traffic stop in October, more than $2,700 in cash taken from three immigrants’ wallets was said to be marked as evidence while waiting to see if human smuggling charges against the driver would stick. The other two men were referred to Border Patrol, where they asked what had happened to the money in their wallets. Guajardo said the seizing deputy couldn’t say under what authority the money was taken, just that Johnson told him to take it.

When Guajardo questioned Johnson about the October seizure, the sheriff said no legal forfeiture paperwork was filed in money seizures, but that money and vehicles were being held as evidence due to trafficking crimes. Days after the traffic stop, Johnson said he consulted with the local district attorney and was told he needed to initiate forfeiture proceedings after property seizures.

Before then, Guajardo wrote that Johnson said “his office was seizing all currency to include currency in possession of undocumented immigrants before being released to the custody of the United States Border Patrol.”