On July 28, 2021, Texas Governor Abbott issued Executive Order No. GA-37 relating to the transportation of migrants during the COVID-19 disaster. GA-37 authorizes the Texas Department of Public Safety (DPS) “to stop any vehicle upon reasonable suspicion of” transporting illegal migrants and to impound any such vehicle. On July 27, 2021, Governor Abbott issued a letter ordering the Texas National Guard (TNG) to “assist DPS in enforcing Texas law by arresting lawbreakers at the border.” On August 3, 3021, Judge Kathleen Cardone of the United States District Court for the Western District of Texas, El Paso Division, issued a temporary restraining order finding that the United States Department of Justice would likely prevail on its claim that GA-37 violates the Supremacy Clause of the United States Constitution because it conflicts with federal immigration law and that GA-37 “causes irreparable injury to the United States and to individuals the United States is charged with protecting, jeopardizing the health and safety of non-citizens . . .” United States v. Texas, Cause No. EP-21-CV-173-KC (W.D. Tex., August 3, 2021).
Caught in the middle of all this are hundreds of indigent migrants. In Val Verde County, Del Rio, Texas, DPS has installed chain link fences on private property at the border and, when migrants breach the fences or enter private property, the migrants are arrested by DPS for the misdemeanor offenses of trespassing or criminal mischief. (https://www.texastribune.org/2021/07/30/texas-greg-abbott-border-security/) Governor Abbott has converted the Briscoe state prison in Dilley, Texas into a state jail to house these arrested migrants. Id. This is approximately 100 miles from Del Rio, Texas. Id. These indigent migrants are charged, magistrated with a bond set at a processing tent, and then transported to Dilley, Texas to await the outcome of the charges. Id.
There exists marked confusion by DPS in Del Rio regarding how these Texas laws are affected by migrants who are seeking asylum. Id. For instance, on July 30, 2021, it was reported that a migrant husband-wife couple from Venezuela were seeking asylum when DPS arrested the husband for trespassing. Id. It was the understanding of the local sheriff that families and children were supposed to be handled by Border Patrol and not DPS. Id. A local Border Patrol agent was confused about why DPS arrested this family member. Id. The sheriff intervened resulting in the husband being reunited with his wife and turned over to Border Patrol for asylum processing. Id.
Hundreds of people have been arrested by DPS, and the Val Verde County Attorney’s office is now overwhelmed with these cases. Id. It has been reported that the County Attorney expects to offer time served to most of these defendants. Id. The Texas Indigent Defense Commission has begun to direct funding to help with court-appointed attorneys for these defendants. Id. Val Verde County, however, does not have enough attorneys to cover this number of new cases. Criminal defense attorneys from around Texas will be needed to help these indigent, migrant defendants.
The Texas Criminal Defense Lawyers Association has many wonderful attorneys who would be willing to assist with these cases. The concerns of TCDLA, however, are that a quick guilty plea of time served may not be appropriate for these cases. Our concerns are many. How fairly was the bail amount determined? How quickly will a pre-trial habeas motion to decrease bail be heard? What are the effects of a plea on the asylum or immigration situation for the migrant? How will Padilla letters be obtained for the migrant to answer immigration concerns and who pays for this? Who will pay for travel and lodging at Del Rio to examine the alleged crime scene and to then travel to Dilley to meet with the client? Who will pay for the investigators needed to help prepare the case? Who will pay for mental health experts and other potentially necessary experts to help prepare the case? Who will set the court-appointed rates?
These are questions we in TCDLA have for our clients every day. These are questions that should also be answered for these indigent, migrant defendants in Del Rio. TCDLA attorneys are always up to the task for providing an excellent defense for clients in these situations. I look forward to seeing how TCDLA attorneys are again up to the challenge and how they will provide excellent defenses for these defendants in Del Rio.
