Texas already 'hardened' schools. It didn’t save Uvalde.

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.

Four days after audacious escape from prison bus, Texas still hasn’t found convicted murderer

It’s been four days since a convicted murderer being transported on a Texas prison bus was able to remove his handcuffs, cut through a metal door to an armed driver, temporarily take control of the vehicle and flee on foot, according to prison officials.

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.

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 as Melissa Lucio learns her life has been spared

On Monday, Melissa Lucio was told by a state lawmaker that she was not going to be executed this week.

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.

Melissa Lucio’s execution halted by Texas Court of Criminal Appeals

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.

Texas prosecutor may temporarily spare the woman many believe is innocent

At a combative legislative hearing, the Cameron County district attorney indicated Tuesday he may step in and stop Melissa Lucio's April 27 execution, creating a new level of uncertainty in what many believe is the case of an innocent woman facing lethal injection.

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 Rep. Victoria Neave Criado, D-Dallas, speaks at a rally organized at Dallas City Hall to free Melissa Lucio on April 7, 2022.

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 April 7, 2022. Somos Tejas organized the rally in coordination with state Rep. Victoria Neave Criado, D-Dallas, as Lucio’s family visited Dallas.

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.

Sylvia Collins holds John Lucio’s hand as they pray at a press conference at Dallas City Hall concerning the future of his mother, Melissa Lucio, who is on death row and scheduled to be executed on April 27, 2022. The family is traveling the state and joining state representatives and supporters in fighting for her freedom.

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 Lucio and his wife, Michelle Lucio, pose for a portrait inside Dallas City Hall after a press conference on April 8, 2022. The family is traveling the state and joining state representatives and supporters in fighting for Melissa Lucio's freedom.

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 after a press conference regarding the future of Lucio’s mother on death row, Melissa Lucio, at Dallas City Hall on April 8, 2022. Michaels is the husband of Kimberly McCarthy, who was executed on death row in 2013.

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.

Disclosure: The University of Texas at Austin has been a financial supporter 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/2022/04/12/melissa-lucio-texas-execution/.

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Texas’ border operation is meant to deter cartels and smugglers. More often, it imprisons lone men for trespassing.

ProPublica is a Pulitzer Prize-winning investigative newsroom. Sign up for The Big Story newsletter to receive stories like this one in your inbox.

For the past year, thousands of Texas National Guard members and state troopers have been sweeping through brush along the Rio Grande and cruising border-town roadways. Their eyes scan the horizon for the cartel operatives and smugglers whom Gov. Greg Abbott vowed to hold at bay when he launched his multibillion-dollar campaign to secure the border.

But more often, the troopers arrest men like Bartolo, a Mexican farmworker who came to the United States looking for work, according to his lawyers. They’ve also slapped cuffs on asylum-seekers like Gastón, a human rights attorney who said he fled Venezuela after being targeted by the Maduro regime for defending political opponents.

Though they don’t fit the specter of the hardened criminals that Abbott conjured when launching his border security initiative, men like Bartolo and Gastón are typical of the thousands arrested under Operation Lone Star, which is intended to combat drug and human smuggling.

In July, four months after the operation started, Abbott announced that, with the permission of landowners, the state for the first time would punish people suspected of illegally crossing the border by arresting them on suspicion of trespassing on private property. The unprecedented “catch-and-jail” system allowed the Republican governor to skirt constitutional restrictions that bar states from enforcing federal immigration law.

The misdemeanor charges quickly became a major piece of the governor’s border security crackdown. While Abbott has publicly focused on arrests of people accused of violence and drug trafficking, an investigation by The Texas Tribune, ProPublica and The Marshall Project found for the first time that trespassing cases represented the largest share of the operation’s arrests.

Of the more than 7,200 arrests made by state police over seven months, about 40% involved only charges of trespassing on private property, according to an analysis of Texas Department of Public Safety data by the news organizations. In February, the majority of the border operation’s arrests were of people booked solely for trespassing.

Trespassing arrests may help boost statistics for the operation, but they don’t deter cartels or gangs, said Victor Manjarrez, a former Border Patrol sector chief. Instead, he said, they hurt people who cross the border on their own, without using smugglers.

“I would rather have people like that spend time away,” Manjarrez said, referring to smugglers, “as opposed to someone who was just unlucky and an economic migrant.”

Under Abbott’s operation, men like Bartolo and Gastón are thrown into state prisons for weeks or months. There they languish in cells where they are given little food and face poor conditions and harsh treatment, detained men and their family members claim. Prison officials deny the accusations.

“As a migrant, I never imagined such a thing,” Gastón said in Spanish about his arrest and imprisonment, adding that he fled Venezuela to run away from a regime that was “going to lock you up and deprive you of your liberty.”

(The Texas Tribune, ProPublica and The Marshall Project agreed to identify those who were arrested by their first names alone because they fear publicity may affect their pending immigration or criminal cases.)

Last year, at Abbott’s urging, Texas lawmakers set aside nearly $3 billion for border security efforts, including nearly $24 million to retool state prisons as jails for people rounded up in Operation Lone Star, and more than $36 million for the related defense attorney, prosecutorial and court costs. Nearly $250 million was parceled out to DPS to pay for overtime and new troopers to police the border.

Abbott celebrated a year of the massive initiative last month by touting seizures of high levels of fentanyl and more than 11,000 criminal arrests. An investigation by the Tribune, ProPublica and The Marshall Project found that the state’s reported success has included both arrests that had nothing to do with the border or immigration and statewide drug seizures by troopers who are not part of the operation.

There is also little evidence that trespassing arrests have lowered the levels of illegal crossings, which remain at record highs along the southern U.S. border, including in the regions heavily targeted by the operation. The governor’s office, however, claims his approach deters potential caravans of people seeking entry to the U.S., and he measures success in arrests and drugs seized.

“Arrests and prosecutions both increase public safety and act as a deterrent to other potential law breakers,” Nan Tolson, an Abbott spokesperson, said in a statement.

Republican state leaders and some local border officials hail the operation as a necessary and tough stance against a continuing rise in illegal immigration. Hunting ranch managers and riverfront property owners said they hoped the arrests would eventually lead to fewer people trudging through their open fields, slashing fences and occasionally stealing or breaking into houses, as some residents have reported to police and media.

“It has turned into a new way of life. You have to go check your fences all the time because illegals are cutting them and you’re going to have livestock getting out,” said Cole Hill, property manager of an 8,000-acre hunting ranch that sits about 30 miles from the Texas-Mexico border in Kinney County, a small, conservative region where the majority of the trespassing arrests have been made. DPS reports obtained by the news organizations show at least a handful of foreign nationals have been arrested and accused of trespassing on Hill’s property and damaging a vehicle.

Eight months of mass arrests in Kinney county, however, doesn’t seem to have had the intended effect of keeping people from crossing the border there.

Chris Olivarez, a DPS lieutenant, said on Twitter last month that the county “continues to see an uptick in illegal immigrants trespassing on private ranches.” Abbott’s office said the mass trespassing arrests secure the border and protect local communities, even though they may not slow immigration. DPS did not respond to questions about the initiative’s effectiveness.

Hill, who hoped the arrest tactic was working when he began seeing fewer people he suspects had just crossed the border on his property at the end of last year, was disillusioned when activity picked up again shortly thereafter.

“I was thinking that Operation Lone Star in general had been slowing some of the traffic, but I think at this point it just seems a perpetual game of cat-and-mouse,” he said last month.

The trespassing arrests have led civil and immigrants’ rights groups to level accusations of discriminatory arrest practices and overreach, and the operation has drawn legal challenges and legislative calls for federal investigations. President Joe Biden’s administration has not announced any action in response to the concerns, and constitutional court battles are ongoing. State courts have ruled that the system illegally imprisoned people accused of trespassing by violating due process laws.

Still, the operation is expanding. Though some officials in the most populous border counties called for more humanitarian aid instead of law enforcement when border crossings began climbing last year, the governor’s office has funneled millions in grant dollars to border counties willing to prosecute crimes like trespassing. In recent months, several south Texas counties began facilitating trespassing arrests, with more expected to join.

For men like Bartolo swept up into Texas’ criminal system, the operation’s impact is clear. In most cases, after spending as much as several months locked up with little information about what is happening, they shuffle through prison halls to sit in front of a camera for their virtual introduction to the Texas courts.

With concrete walls behind him, Bartolo stared dully into the camera in December and asked to be free from the state’s grasp, even if it meant he had to plead guilty and be deported. He cast his eyes down to his orange jumpsuit and swallowed hard.

“I’ve been in 103 days today,” he said in Spanish. “I want to get out.”

Prison for Asylum-Seekers

In July, state troopers were given new orders in two border counties where the number of border crossings was sharply increasing: capture anyone suspected of crossing into Texas illegally who can be tied to a state criminal offense.

The mass arrests began in Del Rio, a small border city about 150 miles west of San Antonio. It hadn’t been a hot spot for crossings for decades, but immigration authorities in the area encountered more than 300,000 border crossers last year, with crossings spiking to record highs in March and climbing throughout Operation Lone Star. The uptick has overwhelmed local resources and pushed Republicans to ramp up rhetoric against illegal immigration.

“President Biden turned our southern border into a porous mess where illegal immigrants wandered across the Rio Grande without anyone there to interdict them,” Abbott said last month in a video promoting the anniversary of Operation Lone Star. “I refused to stand by and let our state be overrun by criminals, deadly drugs like fentanyl and victims of human trafficking.”

The Biden administration did not respond to questions about Abbott’s claims. While Biden has sought to change some immigration policies enacted by former President Donald Trump, the current president has been criticized by members of his own party for continuing others. That includes Title 42, a provision of public health law enacted during the pandemic that allows the federal government to immediately send back the majority of foreign nationals encountered near the border; the rule is expected to remain in effect until May.

But most people returned under Title 42 were sent to Mexico, which only agreed to accept citizens of Central American countries. In Del Rio, many people were coming from countries like Venezuela, Haiti and Cuba and did not face immediate expulsion.

With Del Rio’s official port-of-entry bridge closed during the pandemic, many of those seeking entry to the U.S., sometimes hundreds a day, would wade the river and trudge in sweat-soaked clothes toward several gates along a wrought-iron border fence. The men, women and children who knew to approach these gates as entry points into Texas were detained by Border Patrol agents and either processed for asylum claims or quickly returned to Mexico or their home countries.

Under international and U.S. law, people who flee their countries to escape persecution on account of their race, religion, nationality, membership in a particular social group, or political opinions can apply for asylum, which, if granted, allows them to legally stay in the country.

But many people crossed elsewhere along the river, where Texas troopers waited with orders to arrest and imprison any man who was on private property and not in a family group — and sometimes took men into custody even if they were with relatives. State police were directed under the operation not to arrest women, children or families and instead refer them to Border Patrol. Asylum requests were not considered by the troopers making arrests, Olivarez, with DPS, said in October.

Gastón learned that the hard way.

A longtime defender of political protesters and government opponents in Venezuela, the 57-year-old lawyer said he fled to the United States after he began getting threatening phone calls from police and witnessed his client arrested by Venezuelan military officials during a softball game last summer. President Nicolás Maduro’s government and its security forces have been accused by human rights organizations of jailing, torturing and killing political opponents, and last year officials made a high-profile arrest of another human rights defender.

After multiple trips on planes and buses, Gastón arrived in Ciudad Acuña, the Mexican city across the border from Del Rio. At midday on Aug. 8, he waded through the ankle-deep Rio Grande — stopping to help a family nervous to cross the river with their young daughter, he says. He stepped onto an open road in sight of police, which he was later told was on private property.

Calmly, he told officers he was seeking asylum from persecution in his home country. He stared in shock as handcuffs were snapped onto his wrists.

“As a lawyer and defender of human rights, never in my life had I been handcuffed. Never,” Gastón said.

State trooper Serapio Flores wrote in his arrest report that Gastón emerged from the river onto property marked with a “No Trespassing” sign. The owner, like many in the area, had agreed to let DPS make trespassing arrests on the private land. Gastón said he saw no sign.

After a long night on a metal bench in a large tent, quickly erected outside the local jail to process the new swell of arrestees, Gastón was loaded into a van heading to a state prison more than 100 miles away.

The Briscoe Unit, a medium-security prison between Laredo and San Antonio that previously housed Texas felons, had been emptied to serve as a jail for those arrested under Operation Lone Star, mostly for those expected to be charged with trespassing.

In the prison, the detained men sat in cells unsure of when or how they would be able to leave or what would happen to them after they did, they and their families said. Many men and their family members begged for the detained men to be released and deported. Groups gathered nightly to pray.

Gastón said that during his stay in prison he lost 14 pounds and his faith in America’s compassion.

“It’s a wound that’s there, something you will never be able to forget,” he said.

Still, Gastón had it easier than many of those arrested for trespassing. He was picked up in Del Rio’s Val Verde County, the birthplace of Abbott’s trespassing effort, where a local Democratic prosecutor has since said he would not pursue cases against people seeking asylum under federal laws.

About a month after Gastón’s arrest, Val Verde County Attorney David Martinez dropped the charge against him “in the interest of justice,” according to the dismissal document.

Since then, Martinez said he’s dismissed or rejected many more — about two-thirds of trespassing charges in his county. He credited his decision to DPS Director Steve McCraw’s comments to lawmakers in August. Despite his agency’s arrests of numerous asylum-seekers, McCraw told lawmakers that state troopers on the border “were not looking for anyone who’s trying to give up, who are looking for asylum.”

DPS did not respond to questions about the discrepancy between McCraw’s statements and the arrests of asylum-seekers.

The prosecutor dropped other charges linked to questionable arrests, including those of 11 men who said they were marched to private property by authorities. State police and Border Patrol officials have denied the allegation. Another man’s case was dropped after Martinez said an officer’s body camera footage showed a trooper stepping aside from an open gate to private property, as if inviting the man forward, and then arresting him when he crossed the threshold.

After his release from prison, Gastón was processed by federal immigration authorities in September and eventually released into the United States to await an asylum hearing, which has not been scheduled. The treatment he faced, and which he said others still endure, troubles him not only as an asylum-seeker but also as a human rights lawyer.

“What we are seeing is terrible,” he said. “That in the 21st century we are seeing how human beings crossing the river to seek protection from the U.S. government are being criminalized by the Texas governor.”

“I Want to Get Out”

With Martinez routinely tossing out state charges against people seeking asylum, trespassing arrests dwindled in Val Verde County before nearly stopping altogether in November, according to the prosecutor and DPS arrest data.

“In counties where there is not a willing local partner, arresting more individuals does no good because the local prosecutor will not prosecute,” Tolson, Abbott’s spokesperson, said.

Abbott’s operation found a more accommodating criminal justice system in the sparsely populated, conservative county next door.

Kinney County is home to about 3,100 Texans spread over nearly 1,400 square miles, about 15 miles of which are on the vast Texas-Mexico border. More than 70% of the county’s voters opted for Trump in the 2020 presidential election. Along the main two-lane highway, numerous metal gates are adorned with letters identifying ranches, many offering private exotic game hunting. Aside from the county seat of Brackettville and a railroad ghost town, ranches cover most of the county’s plains.

It was here that Bartolo was arrested.

He and five other people suspected of crossing the border were spotted in September by state troopers in the brush of a Kinney County hunting ranch about 10 miles from the international border. If he’d been apprehended by or turned over to Border Patrol, the 27-year-old Mexican looking for work would likely have been immediately deported.

His journey through Kinney County’s court system took much more time and taxpayer money than a fast expulsion would have, but it ultimately led to the same result.

Unlike in Del Rio, both the Kinney County judge — who handles county administerial duties and all misdemeanor proceedings — and the lone prosecutor for low-level crimes have publicly supported Operation Lone Star. The county sheriff has said that law enforcement has engaged in high-speed pursuits in human smuggling cases, and some police reports have depicted property damage ostensibly caused by people crossing the border.

“As the County Attorney, the residents of Kinney County are who I work for. Not Austin or Washington, DC,” Brent Smith, the newly elected Republican prosecutor who has no prior experience in criminal law, said in a statement. “The residents of Kinney County have demanded meaningful action in the face of the lawlessness and destruction of private property.”

Though the county supports Abbott’s goals, its minuscule court system quickly became and has remained overwhelmed with the massive caseload. Bartolo was one of about 2,500 men arrested in Kinney County on trespassing charges between July and February.

By September, more than 100 men had been kept in prison for weeks without being assigned attorneys, and hundreds more spent more than a month in the lockup without having any charges filed against them. The delays violated state laws meant to protect detainees’ due process rights, a state district judge found, and the men were released from prison on no-cost bonds and sent to immigration officials.

The state sent in a slew of defense attorneys, prosecutors and judges to help, but the arrests continue, stranding men in prison for months before they have a chance to go before a judge and enter a plea. Illegal imprisonments are commonplace, defense attorneys said in a court filing last month. They estimated that the lag between an arrest and an initial court date would soon widen from months to a year, the maximum sentence for trespassing in Texas. Kinney County officials, including Smith, have not responded to questions about the claims of prolonged and illegal detentions.

Bartolo first appeared in court through a video camera inside the Briscoe prison in December. He had languished in prison for more than 100 days, unable to pay a $2,500 bond. At that point, he simply wanted out.

One of his meals that day had largely consisted of raw chicken, he told the judge, and it was one of many times over the last few months when he’d been left hungry. His attorney asked the judge to let Bartolo out without having to put up cash — or at least to lower his bond — while his case wound through the overburdened court.

After listening to the request, newly assigned Judge Allen Amos furrowed his brow. A former county judge whom Kinney County had called in to help from a town about 150 miles north, Amos said he wasn’t confident Bartolo would come back to court if there was less money on the line. He found that $2,500 — which would have to be posted in full because bond companies have not taken on cases linked to border crossings — was “not that much money.”

But there was another way out. If Bartolo pleaded not guilty, Amos said he would push the man’s case along to a hearing more than a month away and possibly set a jury trial further out, all while the farmworker remained in prison. If Bartolo entered a guilty plea, the judge said, “you can possibly get out today, maybe tomorrow.”

It had to be Bartolo’s decision though, the judge stressed. “I’m not going to twist your arm.”

“Well, I want to plead guilty,” Bartolo responded in Spanish, quickly adding, “I want to get out.”

His last words lost him the plea bargain. His lawyer argued his plea was being coerced since he said “in the same breath” that he wanted to plead guilty to be released, not because he felt he was guilty. (To be found guilty of trespassing under Texas law, a person must have had an indication that they were on private property, like a fence or sign.) After a quick one-on-one conversation with his lawyer, Bartolo came back online and stated flatly he would plead not guilty.

He was sent back into the prison corridors without any indication from authorities of how much longer he would be stuck there.

Nine days later, the legal group representing him raised enough money to post his bond. On Christmas Day, he was released from the prison where he had been held for 111 days and delivered into the hands of immigration officials, his lawyers said.

He was deported the same day.

Texas sheriff under investigation for routinely seizing cash from undocumented immigrants

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.”

Texas Gov. Greg Abbott remains silent on posthumous pardon for George Floyd

It’s been nearly two months since the Texas Board of Pardons and Paroles, in a surprising, unanimous decision, recommended that George Floyd be pardoned for a problematic 2004 drug conviction in Houston. Gov. Greg Abbott, who has the final say, has been sitting on the recommendation without public comment since.

For those hoping the pardon will be granted, the governor’s silence has been deafening.

“I just don’t want it to die on his desk,” said Allison Mathis, the Houston public defender who put the request before the parole board. “Up or down, one way or another, just give us an answer.”

Abbott’s office did not respond to questions from The Texas Tribune about Floyd’s case. Mathis said she has repeatedly called and emailed the governor’s office without response.

Floyd, a Black man who grew up in Houston, was murdered in May 2020 by a white Minneapolis police officer who knelt on Floyd’s neck long after he lost consciousness. In the immediate aftermath, Abbott called Floyd’s killing senseless and reprehensible. He promised change and waved at a potential Texas George Floyd Act to prevent police brutality in the state.

Throughout the summer of 2020, however, Floyd’s murder continued to spur a new wave of protests nationwide against police brutality and racial injustice, and the Houstonian became a symbol of the Black Lives Matter movement. Calls for widespread change to American policing included efforts to cut police budgets and shift law enforcement responsibilities to other government programs.

Quickly, Abbott pivoted to defending law enforcement funding and “backing the blue” while quieting on potential changes to policing practices. The state’s George Floyd Act, an omnibus proposal announced by the Texas Legislative Black Caucus without ties to the governor, failed early in the Legislature this year. Narrowly targeted pieces of the larger bill, like restrictions on chokeholds and requirements for officers to provide first aid, ultimately passed with widespread bipartisan support. Abbott did not comment on them when he signed them into law.

As the Republican governor continues hardening on the right while facing conservative primary opponents in his reelection campaign, people advocating for Floyd’s pardon believe Abbott’s politics are behind the delay.

“Is he planning to wait until the GOP primaries are over … when it’s safe?” asked Cory Session, vice president of the Innocence Project of Texas whose brother, Timothy Cole, is the only person in Texas to be posthumously pardoned.

Mathis has requested the governor clear Floyd of a conviction stemming from a 2004 arrest after he was found to have less than half a gram of crack cocaine. The arresting officer, Gerald Goines, said Floyd had given the drugs to an unnamed person, and Floyd ultimately pleaded guilty and received a sentence of 10 months in state jail. But since a botched, deadly raid in 2019 that led to the officer facing a murder charge, Goines has been accused of repeatedly lying or making up confidential informants to bolster his word against defendants.

The accusations led Harris County prosecutors to take a second look at thousands of old convictions connected to Goines, with potentially hundreds needing to be thrown out, according to The Houston Chronicle. By this June, four drug convictions had been overturned, with two men declared innocent by the state’s highest criminal court. Mathis said Floyd should also be pardoned, and the Harris County district attorney has agreed, saying Goines is not credible.

“[Goines] made up the existence of a confidential informant who provided crucial evidence to underpin the arrest and no one bothered to question the word of a veteran cop against that of a previously-convicted Black man,” Mathis wrote in her request to the parole board in April.

Aside from Floyd, only two other people have had Texas pardons sought for them after their deaths, according to parole board records. In 2010, Cole was pardoned by then Gov. Rick Perry more than a decade after he died in prison, falsely accused of a Lubbock rape. Another man had confessed to the rape before Cole died, but Cole was only finally cleared by DNA evidence in 2008.

Perry granted the pardon six days after the board’s recommendation, the board records show. He only did so after Abbott, then the Texas attorney general, gave the legal thumbs up for posthumous pardons.

(In 2014, the parole board voted against recommending a pardon for Cameron Todd Willingham, who was executed for the deaths of his daughters in a house fire. After his death, the Innocence Project said debunked arson science and a paid-off jailhouse informant led to Willingham’s wrongful conviction.)

Still, Cole and Floyd’s cases differ significantly. Cole was cleared by DNA evidence, while Floyd’s conviction is tied to ongoing criminal investigations into Goines. Floyd also had pleaded guilty or no contest to eight other crimes in Houston between 1997 and 2007. Most were for low-level offenses like drugs, trespassing and failing to identify, but he was also sentenced to five years in prison after pleading guilty to an aggravated robbery.

Mathis and Session said that they are not seeking to pardon Floyd of all the crimes, just the faulty one tied to Goines. When comparing Abbott’s behavior toward his brother, Cole, and Floyd, Session’s voice tightened with anger and sorrow. He remembered the then attorney general’s speech at the unveiling of a statute of his brother, and how Abbott said Cole would be a reminder to always pursue justice no matter how long it takes.

“Justice delayed is justice denied, and in this case it's being denied by Gov. Abbott,” Session said.

In latest blunder, charges dropped against migrants arrested in Texas governor’s border crackdown because of faulty paperwork

Trespassing charges filed against dozens of migrants arrested under Gov. Greg Abbott's "catch and jail" border security initiative were dropped last week because court documents filed by the local county attorney failed to point out on what property the men were allegedly trespassing.

The fumble, which ultimately led another prosecutor to sheepishly admit defeat and agree to toss out about 30 cases, is the latest in a string of missteps since Abbott deployed Texas state troopers and National Guardsmen to arrest migrant men suspected of crossing the border illegally on state criminal charges.

The dismissals came during Kinney County's first court hearings for some of the hundreds of men who have been arrested in the rural border area under Abbott's initiative, which he began in July in response to a rise in illegal border crossings. Many of the men whose charges were dropped had already spent more than two months in Texas prisons waiting to go before a judge.

They were expected to be released to federal immigration authorities and likely will either be deported, further detained or released into the United States on asylum bonds.

"The fact they have been held for that long on charges that were deemed defective is really disgraceful," said Amrutha Jindal, a Houston defense attorney whose organization, Restoring Justice, represents nearly 50 migrants arrested in Kinney County.

A sparsely populated region near Del Rio, Kinney County has accounted for the large majority of the more than 1,600 migrants arrested under Abbott's operation for allegedly trespassing. Most of the county's arrests occur after Texas Department of Public Safety officers pull people off passing train cars at a remote rail yard or when people are spotted walking across private ranch lands, sometimes caught on game cameras.

Many of the conservative county's residents have voiced support for the arrests, saying an influx of people crossing the border has led to high-speed police chases, damaged property and general feelings of unease.

"Residents want protection, they want this to end," Kinney County Sheriff Brad Coe said in August. "[Migrants] are tearing up their livelihood, they're tearing up their fences, driving off their hunters, and that's our big industry here."

But with nearly every step into the new state criminal justice system for migrants, Kinney County officials have stumbled.

When arrests first began in the ranching county, about 150 men sat in prison for weeks without being appointed attorneys, which Texas law requires to happen within days of a person requesting one. In September, a state district judge ordered nearly 250 men, the majority arrested in Kinney County, to be immediately released from state custody on bond because they were being illegally detained, held for more than a month without the state filing charges against them.

In three court hearings for migrants last week, defense attorneys challenged the cases against migrants arrested in Kinney County because the prosecutor's charging documents didn't include necessary information — like where the migrant allegedly trespassed, to whom the property belonged and what notice was given to the defendants that entry was forbidden. At least some of the complaints listed vaguely that the defendant "did then and there, with notice that entry was forbidden, enter agricultural land of another."

Last Tuesday, a retired state district judge assigned to the migrant cases tossed the charging documents and ordered that several jailed men be automatically released from state custody on no-cost bonds until the state filed new paperwork. But defense attorneys continued to push back on continued prosecution, arguing there was no way to hold the men to conditions of a bond for nonexistent charges. By Friday, David McCracken, a Lubbock County prosecutor filling in for the Kinney County attorney, agreed to toss all 20 cases on the day's docket, conceding that all of the complaints filed against the migrant men were deficient.

Defense attorneys argue the mistakes were not simple clerical errors, instead contributing to migrants' long stints in jail before they get a hearing before a judge — which in some cases has taken more than three months.

"The paperwork errors are not just mere technicalities. They are serious constitutional violations that are extremely concerning, especially when our clients have been in custody in prison facilities for months based on defective and unconstitutional charging documents," said Kristin Etter, an attorney with Texas RioGrande Legal Aid, which is being paid by the state to represent hundreds of arrested migrants.

Overall, more than 30 men had their cases dropped last week, while three accepted deals to plead guilty to sentences of the amount of time they had already been in prison. Other men whose cases were set to be heard had bonded out of the state prisons and released to immigration authorities.

Those no longer facing charges were expected to be released to U.S. Customs and Border Protection officials, while those who now had a conviction would likely be transferred to U.S. Immigrations and Customs Enforcement.

Many of Kinney County's legal mistakes have stemmed from the county attorney's office, which prosecutes misdemeanor crimes like trespassing. The office has only one lawyer, Brent Smith, who was recently elected to the job without any listed experience in criminal law, according to his LinkedIn profile.

In court, Smith has been noticeably absent, instead enlisting other prosecutors from across the state to act as temporary assistant county attorneys. Kinney County Judge Tully Shahan told The Texas Tribune in September that the high numbers of arrests had overwhelmed the modest judicial system of the county, which has only about 3,000 residents. But attorneys defending the arrested migrants question why Smith isn't taking the lead or offering explanations as problems continue to surface.

Smith did not respond to repeated requests from the Tribune through email, phone calls and an office visit to talk about the situation. Other prosecutors who have represented his office in court hearings also did not respond to questions.

"It is strange that Mr. Smith has not actually appeared in any of these court proceedings and hasn't been able to provide any information as to why the charges were filed late or why the charges that were filed were deficient," Jindal said.

George Lobb, an Austin attorney representing a migrant client, said more concerning than Smith's absence from court is his activity outside of the courtroom, where he repeats anti-immigration rhetoric in memos and on social media and has spoken against migrants for allegedly causing damage on his own property. Last month, Lobb argued in a procedural court hearing that Smith, who was not present, should be disqualified from representing the state in such cases because of "racist and discriminatory" comments and his public discussion of his own property damage, presenting a conflict of interest.

"His bias, or interests, is brought into question as well as his ability to see that justice is done impartially," Lobb told the judge, who waved away the argument saying it was not on the day's agenda.

On Tuesday, more men appeared through Zoom from Texas prisons for arraignments to enter a plea of guilty or not guilty — some of whom had been locked up for nearly 100 days without seeing a judge. Many pleaded not guilty and were ordered to be released on no-cost bonds, likely to ICE, because Smith's office did not file charges against them within the 30-day deadline under state law, meaning they were illegally jailed.

The state, represented by McCracken and the Kimble County district attorney in lieu of Smith, had filed amended complaints to fix the faulty paperwork errors from last week.

Jindal said last week she expected the prosecutors to quickly fix the errors in their charging documents, but noted that so far the migrants' criminal cases have largely failed every time they come under scrutiny from defense attorneys. Mentioning other concerns, like only arresting for trespassing men who are predominantly Latino, she said defense attorneys have litigated "just the tip of the iceberg with the issues with these prosecutions."

"There are still a lot of other issues that will be litigated in terms of violation of rights," she said.

Texas prosecutor drops charges after migrants claim they were marched to private property, then arrested for trespassing

Charges have been dropped against 11 migrants arrested under Gov. Greg Abbott's border security initiative after the men told attorneys they were marched for about 20 minutes to a fenced ranch by law enforcement, then arrested for trespassing.

Without video evidence or a written report of the August incident from U.S. Border Patrol, Val Verde County Attorney David Martinez dismissed the trespassing charges Monday after the men had spent nearly two months in state prison.

The men had fled on foot after a highway traffic stop by Border Patrol agents, according to an arrest affidavit. The migrants later told attorneys that when found near the highway, officers made the migrants walk for about 20 minutes and climb, hands zip-tied, over a nearly 10-foot fence onto a ranch before they were arrested for trespassing by state troopers.

The migrants also said officers cut the Val Verde County landowner's fence so a police dog could get onto the ranch property, a defense attorney and prosecutor told The Texas Tribune.

A Texas Department of Public Safety spokesperson said the migrants' claims were inaccurate, stating that the fleeing men jumped a fence onto private property. A Border Patrol spokesperson said any suggestion that officers led migrants to private property so they could be arrested for trespassing is "absolutely false."

But the muddled situation is just one instance in which Martinez, a Democrat elected to prosecute misdemeanor cases, said he felt compelled to drop charges because of uncertainty over whether DPS arrests pass legal muster. In September, a Venezuelan man crossed the Rio Grande near Del Rio with a married couple and walked up to an open gate attended by state troopers, Martinez said after his office reviewed body camera footage of the encounter. The officers moved aside to let the migrants walk through and then arrested the single man for trespassing. The couple was referred to Border Patrol.

"The troopers could have easily said, 'Hey, this is private property, you can't come on.' But they moved out of the way seemingly as an invitation," Martinez said.

Martinez rejected the case Monday. DPS declined to comment on the arrest.

The cases are examples of the more than 100 trespassing arrests under Abbott's "catch and jail" border security directive that Martinez has dismissed or rejected. The prosecutor has tossed 123 of 231 trespassing cases brought before him by DPS since July, Martinez said at a legislative hearing Monday. So far under his prosecution, 58 men have pleaded guilty to trespassing and been sentenced to 15 days in lockup.

Typically, men whose cases are dropped are released to U.S. Customs and Border Protection for immigration processing in Del Rio. Others who are convicted of trespassing are taken into custody by U.S. Immigration and Customs Enforcement, having already served their 15-day state sentences. In both situations, federal authorities can deport the men or release them into the United States pending asylum hearings.

Since Abbott ordered state police to begin arresting migrants suspected of having crossed the border illegally for the state crime of trespassing on private property, DPS has arrested about 1,300 migrants on the charge, the agency director reported. The men, picked up almost exclusively in Val Verde and Kinney counties, are jailed in state prisons retooled as immigration jails.

The quickly assembled system of arrests, detentions and releases of migrants has been plagued by missteps since its onset, including families being improperly separated, violations of due process, and a lack of coordination among federal, state and local officials.

In a legislative hearing called out of concern over legal blunders in Abbott's arrest initiative, DPS Director Steve McCraw told lawmakers Monday that the people his officers arrest for criminal trespassing are trying to avoid law enforcement, not seek asylum.

"When we talk about criminal trespass, it's that they're paying coyotes, they're paying cartel operatives, smugglers to move around and through to avoid being detected," McCraw said.

In Kinney County, a rural, conservative region next door to Val Verde, many of the hundreds of migrants jailed for allegedly trespassing are arrested at a remote depot as they arrive on train cars from the border.

In Val Verde County, home to Del Rio, however, Martinez said the vast majority of the cases he tosses out are those in which he learns that the arrested migrants had credible asylum claims and were looking for law enforcement to turn themselves in. He has said he began dropping such cases after he heard McCraw tell lawmakers in August that police aren't looking to arrest asylum-seekers, but are instead targeting dangerous criminals.

Other times, Martinez has thrown out trespassing charges for insufficient evidence or questionable circumstances surrounding the arrests, like the cases he tossed Monday. A defense attorney told lawmakers Monday that the incidents are not unique.

"We have heard reports and several of our clients have recounted that they are actually called over onto the river onto private property," said Kristin Etter, whose organization, Texas RioGrande Legal Aid, represents hundreds of the arrested migrants.

In the case of the 11 men who said they were escorted to another property and made to climb the fence onto a ranch, Martinez said he didn't have a report from Border Patrol officers, who reportedly initiated the stop and apprehended the men after they fled. Without it, he wasn't sure if the property where the men were first apprehended was the one listed in the report provided by DPS. If the cases moved forward in court, he said, DPS would be unable to testify where the men were first detained.

"I did not have any way to prove where these people were apprehended because we did not have a supplemental report from Border Patrol, so there was a lack of evidence," Martinez said.

According to a DPS arrest affidavit, the men fled Border Patrol officers during an August traffic stop and jumped a fence onto a local ranch whose owner previously agreed state police could arrest people for trespassing on the property. At least one of the men was found by a Border Patrol dog handler, the affidavit said, and DPS responded to the chase and arrested the men.

Border Patrol reported Tuesday that after more than a dozen men fled on foot from a highway traffic stop into private property, federal agents took custody of the driver and two other people, while DPS arrested the other 11 men.

Martinez and Etter, who represents the men, said the migrants told them the fleeing men had hopped over a small fence bordering the highway, but, when found, were zip-tied and escorted by law enforcement to another property and made to climb a fence. Martinez said he was told that Border Patrol led the men onto the other property, and DPS requested that the men be brought back over the fence again where they were arrested.

Etter said it was unclear if the land the men were originally found on was public land.

With their cases dismissed, the men were expected to be sent back to Val Verde County and handed over to CBP officials for processing, Etter said Tuesday. The Venezuelan man whose case was rejected by Martinez on Monday is also expected to be transferred to CBP.

A Texas prisoner wants his pastor to place his hands on him as he’s executed Wednesday. The state won’t allow it.

On Wednesday, Texas plans to execute John Ramirez for the 2004 murder and robbery of a convenience store clerk in Corpus Christi. The prisoner's last request to the state has been to let his pastor hold on to him as he dies.

It's a request the Texas prison system has rejected. Ramirez has argued the decision violates his religious rights, but the courts have so far sided with the state.

"[The Texas Department of Criminal Justice] has a compelling interest in maintaining an orderly, safe, and effective process when carrying out an irrevocable, and emotionally charged, procedure," U.S. District Judge David Hittner ruled last week.

The judge added that TDCJ "will accommodate Ramirez's religious beliefs by giving Ramirez access to his pastor on the day of execution and allowing him to stand nearby during the execution."

Ramirez, 37, was convicted of capital murder in 2008 and sentenced to die for the stabbing death of Pablo Castro. In his ruling last week, Hittner emphasized that Ramirez had stabbed Castro 29 times during a robbery spree to get drug money with two women. Castro had $1.25 on him.

Ramirez has faced execution twice before in 2017 and 2020. Both times, his executions were canceled — due to an attorney swap and the coronavirus, respectively. Castro's son, Aaron, told KRIS 6 News in Corpus Christi recently that the continued delays were unnecessary and it was Ramirez's "time to go."

"Honestly, if he wants a priest to bless him before he's sent off, by all means, go ahead. That doesn't affect me one bit," Aaron Castro, who was 14 when his father was murdered, said to KRIS. "What affects me is why this process continues to get delayed time and time again."

When Ramirez's execution was again set earlier this year, he focused his legal battle on having his pastor near him as he dies. TDCJ's current execution protocol allows for prisoners' spiritual advisers to be in the death chamber, but standing in the corner "due to security concerns," according to an email from the agency's general counsel included in the court record.

"I understand that I will be able to stand in the same room with John during his execution, but I will not be able to physically touch him," Dana Moore, the pastor at Second Baptist Church in Corpus Christi, wrote in an affidavit filed in court last month. "I need to be in physical contact with John Ramirez during the most stressful and difficult time of his life in order to give him comfort."

For years, chaplains employed by TDCJ would often be in the room during executions, praying and resting a hand on the prisoner's leg. But the agency only had Christian and Muslim advisers on staff.

In 2019, when a Buddhist prisoner was told his adviser would not be allowed in the room with him as he was injected with a lethal dose of pentobarbital, he argued it was religious discrimination. The U.S. Supreme Court agreed, halting the March 2019 execution and setting into motion a yearslong back-and-forth over Texas' execution protocols.

Days later, TDCJ opted to even the playing field by banning chaplains of any religion inside the death chamber, including its own staff. Spiritual advisers could instead stand in the small adjacent rooms where friends and family of the murder victims and prisoners, as well as media, gather.

Then, in June 2020, the nation's high court stopped another Texas execution because of the state's new policy on chaplains. The condemned man argued it violated his religious freedoms, and the justices ordered lower courts to determine "whether serious security problems would result if a prisoner facing execution is permitted to choose the spiritual adviser the prisoner wishes to have in his immediate presence during the execution."

This April, TDCJ again revised its execution policy — allowing those on death row to have their personal religious advisers in the room with them as they are executed, provided the advisers first are verified, pass a background check and complete a state orientation. But unlike the TDCJ chaplains, spiritual advisers from outside the agency are not allowed to touch the prisoners as they die.

Ramirez's attorney, Seth Kretzer, likened the policy to a "spiritual 'gag order'" in court filings. The Texas Attorney General's Office countered that the current policy "accommodates [Ramirez's] religious needs by allowing his pastor to visit and pray out loud with him for up to two hours immediately prior to his execution."

The state also argued that allowing Ramirez access to rituals for his beliefs would open the door for other religions as well.

"Where a Protestant may request his pastor's hands upon him as he passes, a Muslim may prefer for his body to be washed and shrouded immediately upon his passing, and a Buddhist, that his body be untouched for seven days after his death," Assistant Attorney General Jennifer Wren Morris wrote in a court filing last month.

Kretzer responded that such acts didn't seem "unduly burdensome."

"There seems to be a thread of religious hostility throughout the State's shifting positions," he said in his court filing.

The federal district court and the U.S. 5th Circuit Court of Appeals have both declined to halt Ramirez's execution over the issue. On Tuesday afternoon, Kretzer filed an appeal with the U.S. Supreme Court.

Without court intervention, Ramirez's execution is scheduled to begin after 6 p.m. Wednesday in Huntsville. Aside from Ramirez's pastor, a TDCJ spokesperson said Tuesday afternoon he did not yet know if there were any other witnesses expected for either Ramirez or Castro.

Texas has executed two other men so far this year, the only state to do so in 2021, according to the Death Penalty Information Center. The federal government executed three men in January, before President Joe Biden took office. Another six men are set to be executed in Texas this year, with another man's death scheduled for March.

Gov. Greg Abbott's border security initiative rolls out with confusion, missteps and a whole lot of state troopers in Val Verde County

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DEL RIO — Nerio stepped out of the Rio Grande with his wife last week, put his feet on the sandy Texas ground and quickly found himself in handcuffs.

He should not have been arrested. But law enforcement on the Texas border has become a blur of overlapping agencies as Gov. Greg Abbott floods the region with state troopers and Texas National Guard personnel in an unprecedented state effort to arrest migrants after they enter the country illegally.

So the 61-year-old Venezuelan man who came seeking asylum found himself on a private dirt road in the border town of Del Rio, kissing his wife goodbye and walking blank-faced to the awaiting SUV of a state trooper. His wife sobbed quietly, wiping away tears with trembling fingers flecked with purple nail polish.

Nerio was one of the first to be arrested under Abbott's new border security initiative meant to jail migrants on state criminal charges, like trespassing. Instead of approaching the wrought-iron gates where county officials said a large majority of migrants turn themselves in to federal authorities, the couple had entered the country onto a private company's stretch of land.

As the trooper's SUV took off down the dusty road, Nerio was presumably off to be booked at a just-erected processing tent outside the local jail, have bail set over Zoom by a retired judge from elsewhere in the state, then sent more than 100 miles away to a Texas prison recently converted into a jail for migrants. Left behind, his wife would be taken to the federal immigration processing center, to begin deportation or asylum proceedings.

But the hundreds of Texas Department of Public Safety officers deployed to the region are only supposed to arrest unaccompanied men for trespassing if they cross the Texas-Mexico border onto private property, the Val Verde County sheriff said. Families and children are supposed to be handed over to U.S. Border Patrol agents.

"DPS should not have separated the husband and wife. That's a family unit," Sheriff Joe Frank Martinez said, minutes after witnessing the arrest.

TKTK watches as her husband is arrested by a Texas Department of Public Safety official near the U.S. and Mexico border in D…A Venezuelan migrant watches as her husband is arrested by a Texas Department of Public Safety trooper in Del Rio last week. Credit: Miguel Gutierrez Jr./The Texas Tribune

A U.S. Border Patrol agent, who declined to answer questions, also appeared visibly confused by the arrest. When he realized the crying woman was Nerio's wife, he furrowed his brow and approached the trooper to get his contact information. As she fretted over her husband's hypertension when the trooper's SUV pulled away, the agent told her not to worry.

"No se preocupe, señora," he said, assuring her it would be okay. "Todo va a estar bien."

(The Texas Tribune is not publishing Nerio's last name because reporters witnessed the arrest but could not speak to him.)

In a statement Thursday, DPS did not answer questions about Nerio's arrest but said the agency is committed to securing the border under Abbott's direction. Aside from arrests, the agency said it has seized thousands of pounds of drugs and hundreds of guns since Abbott's Operation Lone Star kicked off in March.

"While the department does not discuss operational specifics, we continue to monitor the situation as it unfolds in order to make real-time decisions and will adjust operations as necessary," the statement read.

Nerio's arrest underlines the ongoing chaos and confusion as Abbott's rapidly assembled border security operation seeks to combat a surge of migrants at the state's southern border, many fleeing countries torn by some combination of violence, political turmoil and economic crisis.

Though DPS officers have increasingly been in the region for months, largely targeting human and drug trafficking, troopers have now turned their attention to jailing migrants on low-level state offenses. The number of arrests could swell into the thousands, and local officials are scrambling for resources while immigration rights activists are raising questions about the practice's constitutionality.

"Everything that's happened is happening so fast, it's almost like we're learning on the run so to speak," said Val Verde County Attorney David Martinez, who as a misdemeanor prosecutor is handling the cases of those DPS arrests in his county. "This hasn't happened in this area before, and I don't know that it's happened anywhere really before."

Last week, state troopers began arresting migrants in Del Rio for allegedly trespassing on private property — a misdemeanor that could lead to up to a year in jail because Abbott has declared the rise in immigration a disaster. As of Thursday, about 60 men had been arrested by DPS for allegedly trespassing, the sheriff said. The county attorney said most were from Venezuela, with others from Mexico and Cuba.

On Thursday, 55 migrants were detained in the converted Briscoe state prison in Dilley, a small town between San Antonio and Laredo, according to a prison spokesperson.

Nerio did not end up being among them. After the sheriff happened to drive onto the scene of the arrest with Tribune journalists in tow, he called the DPS regional director who, within minutes, ordered the trooper to reunite Nerio with his wife at the U.S. Customs and Border Protection processing center, the sheriff said. In a phone call Thursday, Nerio's wife said after days of sleeping on the ground in federal custody, she and her husband were released with an asylum hearing court date and have since reunited with their daughter in Oklahoma.

But the sheriff isn't always on site, and he said state troopers, cycled into the region for two-week stints, often aren't clear on what they're supposed to be doing.

"Situations like that happen all the time," Joe Frank Martinez said Friday.

Border politics

With an election year approaching, Abbott has focused heavily on border security efforts in recent months. Facing potentially competitive primary opponents in 2022, the governor has taken up some priorities of former President Donald Trump, including shifting money from the prison budget to invest in a border wall.

And he has repeatedly blamed the surge of migrants crossing into Texas on President Joe Biden's "dangerous and reckless open border policies," spokesperson Renae Eze said.

In the Del Rio region alone, federal immigration authorities apprehended nearly 150,000 migrants between October and June, most from Mexico, Honduras, Venezuela and Haiti. That's up from about 40,000 in the entire year prior.

A group of migrants wait to turn themselves over to National Guard and Customs and Border Patrol officials at the U.S. and M…A group of migrants wait to turn themselves over to National Guard and Customs and Border Patrol officials at the U.S. and Mexico border in Del Rio on July 22, 2021. Credit: Miguel Gutierrez Jr./The Texas Tribune

Typically, migrants apprehended crossing the border are turned over to federal immigration authorities if they aren't suspected of more serious crimes. Federal officials either deport them or let them stay in the country if they have pending asylum claims. A vast majority in Del Rio, county officials said, cross the border and immediately turn themselves in so they can apply for asylum, a request protected under U.S. law.

But county officials said some evade detection by crossing away from major entry points, often traversing private land and frightening landowners.

Abbott's intent is to begin locking up as many of those migrants as possible.

"We have a new program contrary to the Biden plan to catch & release," Abbott said on Twitter Monday. "The Texas plan is to catch & to jail."

In border communities under the governor's border disaster declaration, Texas National Guard troops walk the fence lines with assault rifles strapped to their chests, and DPS SUVs are seen nearly every mile on local highways and filling hotel parking lots.

Numerous Texas Department of Public Safety vehicles are parked at a Best Western hotel in Del Rio on July 23, 2021.Texas Department of Public Safety officers near the U.S. and Mexico border in Del Rio on July 22, 2021.Texas DPS troopers are a constant presence in Val Verde County. Credit: Miguel Gutierrez, Jr. / The Texas Tribune

The American Civil Liberties Union of Texas has raised constitutional concerns with the governor's plan, arguing the arrests could interfere with people's right to seek asylum in the United States. DPS did not answer a written question asking if troopers would refer migrants to Border Patrol if they requested asylum.

"It seems like what DPS is trying to do is funnel people to ICE detention, but … ICE detention space is limited," said Kate Huddleston, a lawyer with the ACLU of Texas. "This is essentially an end run around federal immigration policy."

The most populated and largely Democratic border counties, like El Paso and those in the Rio Grande Valley, have refused the governor's request to send more law enforcement to their regions. Local officials have argued there is no increase in criminal activity in their counties that justifies a disaster declaration and law enforcement surge.

In Val Verde County, however, officials acknowledge that they're overwhelmed by the recent swell of migrants. It's no longer unusual for hundreds of people a day from all over the world to approach the previously low-trafficked border gates in Del Rio to request asylum. Unlike in the Rio Grande Valley, the sheriff said his county is not prepared for many migrants and lacks shelter and transportation for them.

"We need more of everything," he said, including state law enforcement resources.

Joe Frank Martinez is a Democrat. Val Verde flipped from a blue county in the 2020 election when it favored Trump for president.

Uncharted territory

Following Abbott's evolving orders on border security — including a new one this week for the Texas National Guard to also make trespassing arrests, state and county officials have raced to prepare what is largely a new Texas criminal justice system for immigrants. But the process is filled with unknowns.

In June, after Abbott forewarned of widespread arrests of migrants by the state police force, state agencies and local officials rushed to find space and staff to detain the arrested migrants, judges to process them and attorneys to prosecute and defend them. The new system also has the state and counties reaching deep into their pockets to pay for all the extra resources demanded.

Even still, the state criminal justice system likely won't hold most of the arrested migrants for long.

Sitting behind a desk crowded with papers and folders in a cramped annex outside the county courthouse last week, County Attorney David Martinez said he expects to offer plea bargains of time served to most of the defendants facing trespassing charges. That means the migrants — if they plead guilty — would be released from the state system about 10 days after their arrest, he said.

It would then be up to federal authorities to decide if they want to take custody of the migrants.

A spokesperson for U.S. Immigration and Customs Enforcement did not specify whether the detainees would be priorities for their agency, but the county attorney said he believed ICE had asked to be notified before the release of all those arrested. In ICE custody, many would likely be quickly deported.

Regardless of how long they're jailed, the operation demands plenty of resources.

This month, the state quickly erected a tent processing facility just outside the Val Verde County jail where the migrants now being arrested by DPS are booked as inmates and have their first appearance before a judge.

A temporary migrant processing facility next to the Val Verde Sheriff's Office in Del Rio on July 23, 2021.A temporary processing facility for arrested migrants next to the Val Verde Sheriff's Office in Del Rio on July 23, 2021. Credit: Miguel Gutierrez Jr./The Texas Tribune

Selected from a rotating list of 15 retired judges pegged by the Texas Supreme Court for Val Verde County arrests under Abbott's border initiative, the judges set bail through Zoom. As of Thursday, none of the defendants could afford to post bail and all qualified as indigent, the county attorney said. Then the migrants await transportation to the Briscoe state prison, which has been converted into a state-run jail.

At the same time, the county attorney looks over the DPS arrest documents and files the criminal charges, as all arrests have so far been for criminal trespassing, the sheriff said Thursday.

"Once Texas laws are being violated, unfortunately I can't turn the other way," David Martinez said. "I'm not inquiring when I get a file, 'Hey, is this guy a non U.S. citizen?' My question is, does … this alleged crime meet the elements of a criminal trespass case? And if it does, it does."

But if state police ramp up to 200 arrests a day, a possibility for which the state Office of Court Administration is preparing, the county attorney, the county clerk and the lone misdemeanor judge will likely be overwhelmed and require outside help. Already, the local defense bar is struggling.

In an emergency meeting Monday, the Texas Indigent Defense Commission, which is funded by the state primarily from court fees, moved to spend more than $475,000 to provide more lawyers and legal services to represent the new defendants in Briscoe over the next few weeks. If arrests ramp up and continue, the commission estimates indigent defense costs will total about $30 million a year.

"We genuinely don't know that we can get through the next three to four weeks of cases," said Geoff Burkhart, the commission's executive director, in the meeting.

If no funding comes from the state, the brunt may fall on the county taxpayers.

"Val Verde County and the other counties are going to be the ones that are on the hook for paying for lawyers," Sharon Keller, the Texas Court of Criminal Appeals' presiding judge, said in the TIDC meeting.

At the jail, Joe Frank Martinez has already been keeping a tab. He began seeing his jail population skyrocket with DPS arrests even before the new operation began to target criminal trespassing and process migrants separately, he said. He hopes the state will reimburse the nearly $190,000 that the county has had to pay for the overbooked jail since the governor's Operation Lone Star was initiated in March.

"That's something that we're going to be in discussions with with the governor's office," the sheriff said. "It wasn't promised."

When asked about the jail costs, Eze with Abbott's office said the jail costs were high "because of the influx of migrants coming through, not because of the operation itself."

A portion of the newly-erected border fence that is being constructed by the state on private property in Del Rio on July 23…A portion of newly-erected fence that is being constructed and paid for by the state on private property in Del Rio. Credit: Miguel Gutierrez Jr./The Texas Tribune

The state has, however, paid for and is installing more than a mile of barbed wire fence on a private company's riverside property in Del Rio, according to the land owner. The fence will allow DPS to more easily arrest migrants for criminal trespassing and mischief, since they will have to cross or cut through the fence.

To convict someone of criminal trespassing in Texas, the person must have had notice they were on private property. State statute says a fence alone constitutes that notice. And damaging the fence would also be a misdemeanor criminal mischief offense.

Most of the DPS criminal trespassing arrests since last week, including Nerio's, occurred on that property, the county attorney said.

"I told them, 'What you're going to do there is not going to last,'" the property owner, who asked not to be named for fear of retaliation by Mexican cartels, said he told a state official about his new fence. "He said, 'That's what we want. We want them to cut through it, and then we can arrest them.'"

Miguel Gutierrez Jr. contributed to this report.

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Democrats warn of mass detentions as Texas Republicans advance bail bills

Days into a short legislative session, Texas lawmakers are moving quickly to pass a GOP priority bill that would make it harder for some people who have been arrested but not convicted to bond out of jail without putting up cash.

Legislators in the House and Senate filed matching bills to change state bail practices earlier this week, echoing legislation that failed to pass in the regular session. On Saturday, committees in both chambers approved the bills and sent them to the full chambers after nearly three hours of debate in the Senate and nine hours in the House.

The sweeping bail legislation would change how and if people can be released from jail before their criminal cases are resolved, while they are still legally presumed innocent. The bill would ban the release of those accused of violent crimes unless they had enough cash, as well as restrict charitable groups' ability to pay to get people out of jail.

While the two Democrats on the Senate committee supported Senate Bill 6, House Democrats down the hall spoke out strongly against the identical House Bill 2, arguing it would lead to mass detention disproportionately affecting people of color, and it would create an overreliance on money in Texas' pretrial system that is unfair to people who are poor. Both chambers of the Texas Legislature have a Republican majority.

During the hearings, the Republican bill authors, crime victims and their supporters argued new bail laws are needed to keep dangerous people behind bars before their trials, pointing to rising crime rates and numerous examples of defendants accused of violent crimes having been released from jail on bond and then accused of new crimes.

Bill supporters have also fought against the increase in courts releasing defendants on personal bonds, which don't require them to have cash to get out of jail but can include restrictions like GPS ankle monitoring or routine drug testing.

"SB 6 is legislation which is really a direct response to the increase in violent and habitual offenders being released on personal bonds along with low-cash bonds," State Sen. Joan Huffman, a Houston Republican and author of the bill said Saturday. "We have failed our communities, we have failed our citizens, definitely we have failed the victims, and it's time to do something about it."

House Democrats and civil rights advocates opposing the legislation took aim at the bills' continued reliance on cash bail, noting that it primarily penalizes low-income people.

"What does ability to post a cash bond, how does that make a community safe?" questioned state Rep. Joe Moody, D-El Paso, who leads the House Criminal Justice Reform Caucus. "The bill pushes more people into the cash bail system by precluding their ability to have a personal bond in a laundry list of situations."

In Texas, almost everyone who is arrested has a constitutional right to be released on bail. The current exceptions are capital murder defendants or people accused of certain repeat felonies or bail violations.

After someone is accused of a crime and arrested, courts set bail by deciding what restrictions are needed to release the person before their criminal case is resolved. The bail release system has two key goals: protecting public safety and ensuring defendants come back for their court dates.

Often in Texas, like many states, the possibility of being released while awaiting trial comes down to a dollar amount. If the defendant can post an assigned cash bail amount, or pay a nonrefundable percentage to a private bail bonds company, then they can usually walk free.

House Democrats also criticized the provision limiting charitable groups' ability to post bond for criminal defendants. Such organizations became popular after they bailed out protesters arrested during the unrest after a police officer murdered George Floyd. HB 2 and SB 6 would prevent the groups from posting bond for people accused — or ever previously convicted — of a violent crime. Any group could still post bail for up to three people every six months, and religious organizations would be exempt from the restriction.

In the Senate, Huffman dismissed criticism that the measure would lead to mass detention, saying it put in place a process for defendants to say they could not afford their bond and instructed judges to use the least restrictive bail conditions. But Democrats and civil rights advocates said the lengthy form arrestees would need to fill out in jail to declare indigency is overly burdensome, requiring information on tax expenses, noncash assets and debts under penalty of perjury.

"SB 6 is trying very hard to keep the most serious violent offenders away from our communities until they can have their trial," Huffman said at the hearing. "On the other hand, it is very cognizant of low-level, low-risk offenders, that there needs to be the least restrictive means used to ensure their appearance in court."

While portions of the bills have drawn sharp division, others are less controversial. For example, the bills would require more judicial training on bail setting and provide more information to court officers who are setting bail, like a defendant's criminal history.

Still, Democrats and civil rights advocates say that the GOP bail legislation is a move in the wrong direction and would exacerbate systemic racism in the Texas criminal justice system, where Black men are disproportionately arrested and imprisoned.

"We're going to double down on those errors of the past," Moody said. "We have done an immense amount of work in this body to try to turn the corner on those things, to try to promote liberty, to look at restorative justice … This is going to take us backwards."

For years, civil rights groups and federal courts nationwide and in Texas have scrutinized bail systems' reliance on cash. In Harris and Dallas counties, federal courts ordered changes to bail practices ruled unconstitutional because they led to the systematic detention of people who haven't been convicted of a crime simply because they were poor.

In an ongoing federal lawsuit in Houston, civil rights attorneys pointed to the case of Preston Chaney, a 64-year-old man who caught the coronavirus in the Harris County jail and died. He'd been kept in jail for months, accused of stealing lawn equipment and meat from a garage. If he'd been able to pay about $100, he could have walked out of jail shortly after his arrest.

But Gov. Greg Abbott and other Republicans say bail changes are urgently needed instead to keep more defendants behind bars, citing examples of violent crimes committed by those who were out of jail on bond. Abbott began to call for bail changes after Texas state trooper Damon Allen was killed during a 2017 traffic stop. The suspect was out of jail on a $15,000 bond at the time, and the court official who set his bail later said he would have set the dollar amount higher if he had known the man had previously been accused of assaulting a Smith County deputy.

Harris County Republicans have also pointed to violent crimes allegedly committed by those out on bond, with some defendants having posted a high bail amount to be released and others being released on personal bonds. At the Capitol, people whose loved ones were killed questioned how the suspect could have been released on bond.

That included Melanie Infinger, whose 20-year-old pregnant daughter, Caitlynne, was killed in 2019, allegedly by her estranged husband. He had been released on a personal bond after being accused of assaulting Caitlynne, according to court records. He had been out on bond for an intoxicated driving charge when the assault occurred.

"[Caitlynne] reassured me that there was no way that he was going to get out because … he's facing a felony and multiple misdemeanors," Infinger said Saturday before lawmakers.. "Harris County, the very system that promised to protect my daughter, was responsible for her murder."

HB 2 and SB 6 are similar, but not identical, to the final version of the bail bill that failed to pass earlier this year after House Democrats walked out of the chamber to kill a GOP voting measure. After the regular legislative session ended in May, Abbott vowed to bring lawmakers back to the state Capitol for a special session to pass bail and voting legislation.

Along with the priority bail bills, the two committees also approved related resolutions to allow courts to more often deny the release from jail outright in some violent cases. If passed, the resolutions would amend the Texas Constitution if approved by voters in November. But measures to change the Constitution must pass with a two-thirds majority — which requires Democrats to join Republicans on the bill.

Dozens who died in Texas prisons during the pandemic had been granted parole: report

"Dozens who died in Texas prisons during the pandemic had been granted parole, new report shows" was first published by The Texas Tribune, a nonprofit, nonpartisan media organization that informs Texans — and engages with them — about public policy, politics, government and statewide issues.

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Last year, as the coronavirus killed hundreds inside Texas lockups and sickened tens of thousands more, prisoner rights advocates unsuccessfully pleaded for state officials to more quickly release the thousands of people in prison who had already been approved for parole.

Now, a new report shows delays in release have been deadly.

In the first year of the pandemic, 18 people who had already been granted parole died with COVID-19 before they could walk out of prison, according to a report released Thursday from the University of Texas at Austin's Lyndon B. Johnson School of Public Affairs. At least another two dozen parole grantees died in prison from reasons unrelated to the coronavirus in the same period, largely due to chronic health issues.

“While COVID has dramatically exacerbated this problem, the data also tells us that this phenomenon is not unique to the pandemic era," the report stated.

At least 26 people died in prison in 2019 after having been granted parole, according to the report.

In April, about 10,800 people held in Texas prisons had already been approved for parole, according to data from the Texas Department of Criminal Justice, accounting for 9% of the state prison population. More than a quarter of them had been granted parole at least six months earlier, and nearly 900 people had been waiting for more than a year.

The large number of parole grantees in prison is not unusual. At any given time, thousands of people are held in Texas prisons despite having a parole approval in their hands. That's in part because the Texas Board of Pardons and Paroles requires most prisoners to first undergo additional educational or rehabilitative programming before their parole release, which can last from three to 18 months.

Some of the programs are specific to the person's conviction, like addiction and sex offender treatment programs. But many prisoners are assigned to complete a more generic life-skills program that lasts three months. In 2019, less than a quarter of those granted parole were approved for release without delay.

During the pandemic, those classes — and the parolees' releases — were often pushed back. Before March 2020, a person granted parole remained in prison an average of three to four months before being released, according to the report. That average increased to six months in the pandemic, with a typical delay ranging from five to 11 months. Eleven people who died in prison during the pandemic had been approved for parole more than a year earlier, the report found.

One explanation for the delay is that those who required programming that wasn't available at their prisons had to wait months while transfers among units were stopped to limit the virus' spread. And units confirmed to have active infections were locked down, sometimes for a month or more, restricting activity within and halting movement in and out of them. Rehabilitative programming shifted from in-person interactions in a classroom setting to filling out paper packets in the prisoner's dorm or cell.

The threat of the coronavirus and the limited programming inside prompted family members and prisoner advocates to call for parolees to complete any necessary programming outside of prison walls after release. But the parole board said repeatedly it would not change its parole review process during the pandemic. Gov. Greg Abbott, who oversees the board, has maintained a strong message against increased release from lockups, stating in March 2020 that “releasing dangerous criminals in the streets is not the solution" to the virus' threat inside prisons and jails.

For those who had been approved for release on parole, the UT Austin report suggested free-world programming, noting it is already often available in the community for people sentenced to probation. The report also recommended that TDCJ provide prisoners any necessary rehabilitative programming earlier in their sentences, so as not to postpone release once parole has been granted. Michele Deitch, a senior lecturer at the LBJ School and an author of the report, said such a change would require a significant shift in practices within the parole board and TDCJ.

“There's a concept that every expert will tell you, which is that reentry starts on the day of admission to prison," she said. “To adhere to that concept, it makes sense to offer that programming at the start of someone's time that they're incarcerated."

In the Legislature, the Texas House passed a bill this year to require that any necessary prerelease programs be identified by the parole board and made available to prisoners by TDCJ before they become eligible for parole. The bill died, however, after never moving in the Senate.

A spokesperson for the parole board did not respond to questions Tuesday. TDCJ spokesperson Jeremy Desel said the agency provides programming that is mandated by the parole board, and acknowledged the pandemic “absolutely" presented challenges to parole releases. He added that the state has a low rate of people released from prison being reincarcerated within three years.

“The parole system is built to give inmates the highest possible chance to succeed in their reintegration into society," he said. “And the way our parole system works and has been working in Texas is a success story."

Aside from COVID-19, most deaths of those granted parole were due to chronic health conditions, according to the UT report. It says the state pays an estimated $744,722 each day the nearly 10,800 prisoners who were approved for parole in April stay locked up. And costs are much higher for those with chronic medical conditions, as an aging prison population continues to increase prison health care costs. The report recommends immediately releasing those granted parole who are chronically ill.

“It's a problem that is not only a tremendous human toll, but it's got an enormous cost attached to it," Deitch said.

For Kambri Crews, any of the recommended changes in the report could have let her see her father in person before he died in prison custody in July instead of saying goodbye on a hard-fought FaceTime call. Theodore “Cigo" Crews, 73, died in a prison hospital after a late cancer diagnosis, 30 days after he'd been granted parole. He had served 18 years of a 20-year aggravated assault sentence.

“We went through a whole roller coaster of emotions," Kambri Crews said, between learning he was approved for parole and his death. “From elation and fear because of the COVID concerns, and also this crushing feeling of helplessness in knowing that we were going to be caught in the apathetic bureaucracy."

Her father was first required to take a drug and alcohol program, she said, but she didn't understand why he couldn't have taken classes any other time in his nearly two decades behind bars, or take them outside with her had he been released.

“He's a prime example of someone who needed therapy and [Alcoholics Anonymous] and domestic violence training before he got released," she acknowledged. “But he'd been in prison for 18 years, so what was that time for?"

Disclosure: The University of Texas at Austin has been a financial supporter 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.

This article originally appeared in The Texas Tribune at https://www.texastribune.org/2021/06/17/texas-prisons-parole-coronavirus/.

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Texas investigating allegations that unaccompanied migrant children are being abused, sexually assaulted in San Antonio

Gov. Greg Abbott on Wednesday called for the federal government to close a San Antonio facility housing unaccompanied migrant children after he became aware of allegations of sexual assault.

"In short, this facility is a health and safety nightmare," Abbott said at a press conference outside the Freeman Coliseum, which is reportedly housing more than 1,300 teens who recently crossed the U.S.-Mexico border without a parent or guardian.

The announcement came as Texas and the federal government are locked in battle over a recent increase in the number of migrants crossing the state's southern border.

Abbott said complaints about sexual assault were reported early Wednesday to the Texas Department of Family and Protective Services as well as the Texas Health and Human Services Commission. The governor did not know the identities of those who alleged assault, nor did he provide many details. He said he was concerned more than one child may have been assaulted. He also said that DPS will investigate the allegations.

The U.S. Department of Health and Human Services did not immediately respond to questions after Abbott's announcement.

The press conference, Abbott said, was to alert President Joe Biden's administration and push them to move the children housed in the coliseum to other federally run facilities with more "space, personnel and resources to ensure safety." He also said the facility was short on staff, some kids were not eating enough food and those infected with the coronavirus were not separated from healthy teens.

A spokesperson for Abbott said the governor told federal officials about the allegations before the press conference.

Rebeca Clay-Flores, a Bexar County commissioner, painted a different picture of the conditions than the governor described, however. She said, having been in the facility many times, she saw children being well cared for. The Freeman Expo Center in San Antonio, which KSAT-TV reported held 1,370 teens on Monday, has the ability to house up to 2,500 children, according to the federal health department.

"What I saw when I went in there on several occasions, it was well-staffed, the children are very happy and very excited to be here," she told reporters after Abbott left. "This is not a political issue. This is about children who deserve protection from adults."

Abbott acknowledged to reporters that he had not been inside the coliseum.

Vulnerable children are often victims of sexual assault. In Texas, children kept in foster care and state-run juvenile lockups often report sexual assault, as well, without the governor's immediate intervention. Last fall, juvenile justice advocates pleaded for the U.S. Department of Justice to investigate sexual abuse in Texas' youth lockups, which have been plagued by scandal for more than a decade.

Abbott and many other Texas Republicans have repeatedly criticized the Biden administration as it struggles to address an increase in migrants being apprehended near the U.S.-Mexico border. Almost all single adults are being immediately expelled under a pandemic health order issued by Trump that Biden has kept in place, although the current administration is allowing in unaccompanied minors and some families to await their immigration court hearings in the U.S. But Democrats are also loudly questioning where the conservative compassion was less than two years ago under President Trump's watch, when apprehensions hit near-record figures despite his crackdown on the border.

The number of people crossing the border illegally increases nearly every spring thanks to the weather getting warmer. The past three presidents have struggled at times during their tenures with surges in border crossings. But the number of children being apprehended has been particularly high in recent months, straining federal facilities.

As of Tuesday, the Biden administration had more than 4,200 unaccompanied migrant children in Border Patrol custody and roughly 16,000 in the care of federal shelters run by the federal Department of Health and Human Services. By law, unaccompanied children are not supposed to be held in Border Patrol custody for more than 72 hours except for in emergencies. Since Feb. 22, the White House has opened at least eight emergency influx sites of unaccompanied migrant children in Texas, including Freeman, with a total capacity of about 14,000 beds.

Lomi Kriel, Shawn Mulcahy and Patrick Svitek contributed to this report.