Jolie McCullough

Legal records reveal that Texas is jailing migrants without due process

As court fights continue over the constitutionality of Gov. Greg Abbott’s mass arrests of migrants at the Texas-Mexico border, new legal filings describe an ongoing and consistent pattern of men being illegally detained for a month or more as their cases stagnate in overwhelmed courts.

Nearly eight months after the state began arresting migrants and prosecuting them on trespassing charges under Abbott’s order, a group of defense attorneys told the state’s highest criminal court that some men are still locked up for months before the courts give them an attorney or prosecutors file misdemeanor charges against them, in violation of state laws.

Texas laws require that criminal defendants be assigned an attorney within three days of asking for one, and misdemeanor defendants be released from jail pending trial if prosecutors do not file charges within 30 days after arrest.

Those deadlines are regularly surpassed, according to the legal briefing from Texas RioGrande Legal Aid, which represents hundreds of migrant men accused of trespassing on private property. Two men were detained in a state prison for nearly five months, unable to post bonds of $1,500, without being assigned lawyers or having any charges filed against them, defense lawyers said.

And efforts to fix the due-process violations and get the men out of prison, attorneys say, have been met with further delay by court officials in rural Kinney County, where the majority of Abbott’s trespassing arrests have occurred.

“Those unlawfully incarcerated in Kinney County have become pawns in the larger political debate about whether the Biden administration is adequately addressing border crossings,” defense attorney E.G. Morris wrote to the Texas Court of Criminal Appeals this week.

The claims were raised in a legal fight now before the Court of Criminal Appeals, in which Kinney County is seeking to prevent a Travis County judge from ruling on the legality of hundreds of migrants’ trespassing arrests.

The same judge in January found one migrant’s arrest under Abbott’s Operation Lone Star border initiative unconstitutional, and defense attorneys are hoping to leverage that ruling to help more than 400 other men. Kinney County is asking the high court to find that Travis County courts have no jurisdiction over Kinney County cases.

“It is apparent that these, and other, applicants are foregoing the functioning courts of Kinney County and seeking more agreeable counties and/or courts for their complaints,” David Schulman, acting assistant Kinney County attorney, wrote to the high court.

In legal briefings, Kinney County representatives did not respond to the allegations of unlawfully detained migrants and instead focused on the jurisdiction challenge. Neither the Kinney County judge nor the county attorney, who prosecutes misdemeanor crimes, responded to questions about the defense attorneys’ filings.

In July, Abbott ordered state troopers along parts of the border to arrest men suspected of crossing into the country illegally on state charges, most often trespassing on private property. The aggressive law enforcement tactic was the governor’s latest response to a rise in illegal border crossings.

But the new arrests quickly resulted in a flurry of legal missteps as Kinney County officials failed to keep up with the flood of defendants. By September, a local state district judge had ordered the release of nearly 250 men after they sat in prison for more than a month without having any criminal charges filed against them. Dozens had not been assigned a lawyer.

“There wasn’t the prosecutorial capacity to keep up with the number of arrests that DPS was making, plain and simple,” Department of Public Safety director Steve McCraw said at a legislative hearing on the operation last week. “It’s one thing to say, ‘Oh yeah, we can handle that.’ It’s another thing all of a sudden when you’ve got large numbers being booked into jail.”

The state brought in judges, prosecutors and defense attorneys to help with the caseload, and court hearings soon picked up speed. From October to February, Kinney County reported holding nearly 1,700 court hearings for the trespassing cases, resulting in nearly 500 men pleading guilty.

But the problem, the defense attorneys say, is far from over. DPS has reported more than 3,000 criminal trespassing arrests, the large majority of which have occurred in Kinney County.

Those who can’t afford to post bond still typically linger in prison between three and four months before they are able to go before a judge, the legal aid group said. At this first court hearing, men are offered immediate release from prison in exchange for a guilty plea. If they plead not guilty, they remain in jail indefinitely. The county has yet to schedule a trial for a trespassing arrest.

And getting courts to release men who have been detained beyond legal deadlines is hard to do in the conservative border county, the lawyers said. Such delays have only worsened, they said, after Kinney County Judge Tully Shahan dismissed state-assigned judges who had been hearing such cases and releasing unlawfully imprisoned men, swapping them out with five judges of his own choosing.

The legal group said the new judges either “simply refuse” to hear the cases now “or do so with lengthy delay.” The lawyers said after filing for the release of men held too long in late February at the local district court, the paperwork had still not been accepted by the clerk’s office this week. Attorneys were told it would be late April before a hearing was held.

The delays, defense attorneys argue, are what prompted the men to seek relief from their due-process violations outside of Kinney County, the focus of the lawsuit before the Texas Court of Criminal Appeals.

County representatives call the move “forum shopping,” as the defense groups sought out more liberal counties to rule against arrests ordered by the Republican governor, and asked the high court to halt other counties from ruling on their arrests. The migrants’ lawyers counter that the move was necessary to follow Texas laws on due process, a constitutional right that applies to migrants as well as U.S. citizens.

“Once they start watering down these protections, they’re watered down for all of us,” Kristin Etter, an attorney with Texas RioGrande Legal Aid, told The Texas Tribune. “It’s designed to safeguard individual freedoms over overreaching government power, and it’s a sacred pillar of jurisprudence.”

For the first time in more than 4 decades, media were not allowed to witness a Texas execution

For the first time in the modern death penalty era, Texas did not let the media witness an execution.

Reporters have always been present at executions to observe the state as it wields its greatest power over life. Texas media reports often provide detail excluded from state records — like prisoners describing a burning sensation after lethal drugs are injected in their veins. And across the country, reporters have served as watchdogs in botched executions.

On Wednesday, the state executed Quintin Jones, 41, for the Tarrant County murder of his great-aunt in 1999. It was the state's first execution in 10 months, the longest lull in the country's busiest death chamber since 1984.

Since 1982, when Texas capital punishment resumed after the death penalty was reinstated nationwide, all 570 state executions have had at least one media witness present, according to the Associated Press.

Until Wednesday.

Texas Department of Criminal Justice spokesperson Jeremy Desel said Wednesday night that the media's nonadmittance was an error and resulted from a miscommunication between prison officials. Typically, when an execution is set to proceed, prison officials call the press office across the street, and the spokesperson walks the reporters over. He said that call never came.

"We apologize for this critical error," Desel said. "The agency is investigating to determine exactly what occurred to ensure it does not happen again."

On Thursday morning, Desel said the investigation was underway, but he could not yet provide more details on what it entailed.

Texas executions take place in the state's oldest prison in Huntsville. Reporters for the Associated Press and the Huntsville Item attend each execution, and the Texas Department of Criminal Justice allows a small number of other Texas reporters to witness if they request to attend. Reporters stand in two small viewing rooms separated from the death chamber by a glass pane. The same rooms hold friends and family of the prisoner and murder victim.

The media can then report on final statements from the prisoner, which prison officials also release, but they also can detail how the lethal drugs affect the prisoner and statements the prisoner makes after the drugs begin to flow, which the prison doesn't report.

In recent years, several Texas inmates have stated that the drugs burn after their final statement is concluded or jerked their bodies, according to media reports. The reports in part prompted legal filings against what death penalty defense attorneys called "tortuous" executions using old lethal injection drugs. Texas has repeatedly extended the expiration dates of its execution drugs after retesting their potency.

In other states, reporters have been key in exposing botched executions. An Arizona reporter counted how many times a prisoner gasped in the hours it took for him to die. Oklahoma journalists reported something had gone wrong after a prisoner's vein blew when injected with a controversial lethal drug cocktail. He later died of a heart attack.

After Wednesday's execution in Texas, the two Texas lawmakers who lead the bipartisan House Criminal Justice Reform Caucus posted on Twitter that the exclusion of media witnesses was unacceptable. State Rep. Joe Moody, an El Paso Democrat and co-chair of the caucus who has pushed to end the death penalty, said Thursday there isn't any satisfactory explanation for the action.

"Nothing the government does should happen in the dark, least of all something as grave as the taking of a life," he said in a text message. "I've always said that human error—whether it's on the street or in a court or at the death chamber itself—is one of the main reasons the state should never be involved in killing a human being."

State Rep. Jeff Leach, a Plano Republican and the other chair of the caucus, said in a text message Thursday that policymakers will figure out what went wrong and "put in place the appropriate safeguards to ensure it never happens again." Leach has criticized Texas' death penalty for years.

"It's unfathomable - and completely unacceptable - that a regular and necessary practice of allowing a media presence to witness the execution of a Texas inmate was so blatantly disregarded," he said.

Texas leaders failed to heed warnings that left the state's power grid vulnerable to winter extremes: experts

By Erin Douglas, Kate McGee and Jolie McCullough, The Texas Tribune

Feb. 17, 2021

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Millions of Texans have gone days without power or heat in subfreezing temperatures brought on by snow and ice storms. Limited regulations on companies that generate power and a history of isolating Texas from federal oversight help explain the crisis, energy and policy experts told The Texas Tribune.

While Texas Republicans were quick to pounce on renewable energy and to blame frozen wind turbines, the natural gas, nuclear and coal plants that provide most of the state's energy also struggled to operate during the storm. Officials with the Electric Reliability Council of Texas, the energy grid operator for most of the state, said that the state's power system was simply no match for the deep freeze.

“Nuclear units, gas units, wind turbines, even solar, in different ways — the very cold weather and snow has impacted every type of generator," said Dan Woodfin, a senior director at ERCOT.

Energy and policy experts said Texas' decision not to require equipment upgrades to better withstand extreme winter temperatures, and choice to operate mostly isolated from other grids in the U.S. left power system unprepared for the winter crisis.

Policy observers blamed the power system failure on the legislators and state agencies who they say did not properly heed the warnings of previous storms or account for more extreme weather events warned of by climate scientists. Instead, Texas prioritized the free market.

“Clearly we need to change our regulatory focus to protect the people, not profits," said Tom “Smitty" Smith, a now-retired former director of Public Citizen, an Austin-based consumer advocacy group who advocated for changes after in 2011 when Texas faced a similar energy crisis.

“Instead of taking any regulatory action, we ended up getting guidelines that were unenforceable and largely ignored in [power companies'] rush for profits," he said.

It is possible to “winterize" natural gas power plants, natural gas production, wind turbines and other energy infrastructure, experts said, through practices like insulating pipelines. These upgrades help prevent major interruptions in other states with regularly cold weather.

Lessons from 2011

In 2011, Texas faced a very similar storm that froze natural gas wells and affected coal plants and wind turbines, leading to power outages across the state. A decade later, Texas power generators have still not made all the investments necessary to prevent plants from tripping offline during extreme cold, experts said.

Woodfin, of ERCOT, acknowledged that there's no requirement to prepare power infrastructure for such extremely low temperatures. “Those are not mandatory, it's a voluntary guideline to decide to do those things," he said. “There are financial incentives to stay online, but there is no regulation at this point."

The North American Electric Reliability Corporation, which has some authority to regulate power generators in the U.S., is currently developing mandatory standards for “winterizing" energy infrastructure, a spokesperson said.

Texas politicians and regulators were warned after the 2011 storm that more “winterizing" of power infrastructure was necessary, a report by the Federal Energy Regulatory Commission and the North American Electric Reliability Corporation shows. The large number of units that tripped offline or couldn't start during that storm “demonstrates that the generators did not adequately anticipate the full impact of the extended cold weather and high winds," regulators wrote at the time. More thorough preparation for cold weather could have prevented the outages, the report said.

“This should have been addressed in 2011 by the Legislature after that market meltdown, but there was no substantial follow up," by state politicians or regulators, said Ed Hirs, an energy fellow and economics professor at the University of Houston. “They skipped on down the road with business as usual."

ERCOT officials said that some generators implemented new winter practices after the freeze a decade ago, and new voluntary “best practices" were adopted. Woodfin said that during subsequent storms, such as in 2018, it appeared that those efforts worked. But he said this storm was even more extreme than regulators anticipated based on models developed after the 2011 storm. He acknowledged that any changes made were “not sufficient to keep these generators online," during this storm.

After temperatures plummeted and snow covered large parts of the state Sunday night, ERCOT warned increased demand might lead to short-term, rolling blackouts. Instead, huge portions of the largest cities in Texas went dark and have remained without heat or power for days. On Tuesday, nearly 60% of Houston households and businesses were without power. Of the total installed capacity to the electric grid, about 40% went offline during the storm, Woodfin said.

Climate wake-up call

Climate scientists in Texas agree with ERCOT leaders that this week's storm was unprecedented in some ways. They also say it's evidence that Texas is not prepared to handle an increasing number of more volatile and more extreme weather events.

“We cannot rely on our past to guide our future," said Dev Niyogi, a geosciences professor at the University of Texas at Austin who previously served as the state climatologist for Indiana. He noted that previous barometers are becoming less useful as states see more intense weather covering larger areas for prolonged periods of time. He said climate scientists want infrastructure design to consider a “much larger spectrum of possibilities" rather than treating these storms as a rarity, or a so-called “100-year event."

Katharine Hayhoe, a leading climate scientist at Texas Tech University, highlighted a 2018 study that showed how a warming Arctic is creating more severe polar vortex events. “It's a wake up call to say, 'What if these are getting more frequent?'" Hayhoe said. “Moving forward, that gives us even more reason to be more prepared in the future."

Still, Hayhoe and Niyogi acknowledged there's uncertainty about the connection between climate change and cold air outbreaks from the Arctic.

Other Texas officials looked beyond ERCOT. Dallas County Judge Clay Jenkins argued that the Texas Railroad Commission, which regulates the oil and gas industry — a remit that includes natural gas wells and pipelines — prioritized commercial customers over residents by not requiring equipment to be better equipped for cold weather. The RRC did not immediately respond to a request for comment.

"Other states require you to have cold weather packages on your generation equipment and require you to use, either through depth or through materials, gas piping that is less likely to freeze," Jenkins said.

Texas' electricity market is also deregulated, meaning that no one company owns all the power plants, transmission lines and distribution networks. Instead, several different companies generate and transmit power, which they sell on the wholesale market to yet more players. Those power companies in turn are the ones that sell to homes and businesses. Policy experts disagree on whether a different structure would have helped Texas navigate these outages. “I don't think deregulation itself is necessarily the thing to blame here," said Josh Rhodes, a research associate at University of Texas at Austin's Energy Institute.

History of isolation

Texas' grid is also mostly isolated from other areas of the country, a set up designed to avoid federal regulation. It has some connectivity to Mexico and to the Eastern U.S. grid, but those ties have limits on what they can transmit. The Eastern U.S. is also facing the same winter storm that is creating a surge in power demand. That means that Texas has been unable to get much help from other areas.

“If you're going to say you can handle it by yourself, step up and do it," said Hirs, the UH energy fellow, of the state's pursuit of an independent grid with a deregulated market. “That's the incredible failure."

Rhodes, of UT Austin, said Texas policy makers should consider more connections to the rest of the country. That, he acknowledged, could come at a higher financial cost — and so will any improvements to the grid to prevent future disasters. There's an open question as to whether Texas leadership will be willing to fund, or politically support, any of these options.

“We need to have a conversation about if we believe that we're going to have more weather events like this," Rhodes said. “On some level, it comes down to if you want a more resilient grid, we can build it, it will just cost more money. What are you willing to pay? We're going to have to confront that."

Texas Tech University, University of Texas at Austin and University of Houston have been financial supporters of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune's journalism. Find a complete list of them here.

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George W. Bush congratulates President-elect Joe Biden on his victory: The 'outcome is clear'

"George W. Bush congratulates President-elect Joe Biden on his victory, says the "outcome is clear"" 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.

Former President George W. Bush congratulated President-elect Joe Biden on Sunday, sending a clear signal to other Republicans, including President Donald Trump, who are questioning the election results.

"Though we have political differences, I know Joe Biden to be a good man who has won his opportunity to lead and unify our country," Bush said in a statement. "The President-elect reiterated that while he ran as a Democrat, he will govern for all Americans. I offered him the same thing I offered Presidents Trump and Obama: my prayers for his success, and my pledge to help in any way I can."

Bush, a Republican who also served as Texas' governor, said he had spoken with the Democratic president-elect and had thanked Biden for "the patriotic message he delivered last night" in his acceptance speech. He also said he called Vice President-elect Kamala Harris. Bush said that Biden "earned the votes of more than 70 million Americans," but noted that Trump had the right to "request recounts and pursue legal challenges"

"The American people can have confidence that this election was fundamentally fair, its integrity will be upheld and its outcome is clear," Bush said. "The challenges that face our country will demand the best of President-elect Biden and Vice President-elect Harris – and the best of us all. We must come together for the sake of our families and neighbors, and for our nation and its future."

Trump has refused to concede, saying the election was stolen and making unsubstantiated claims of widespread voter fraud. The president's campaign has filed several legal challenges to contest the election results in battleground states. Judges in two of those cases — in Michigan and Georgia — tossed out the lawsuits because the campaign failed to provide evidence that laws were broken. A federal judge also denied the campaign's request to stop counting votes in Philadelphia, but ordered election officials to expand the number of people allowed in the room.

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Texas Supreme Court rejects GOP-led effort to throw out nearly 127,000 Harris County votes

By Jolie McCullough, The Texas Tribune

Nov. 1, 2020

"Texas Supreme Court rejects Republican-led effort to throw out nearly 127,000 Harris County votes" 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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A legal cloud hanging over nearly 127,000 votes already cast in Harris County was at least temporarily lifted Sunday when the Texas Supreme Court rejected a request by several conservative Republican activists and candidates to preemptively throw out early balloting from drive-thru polling sites in the state's most populous, and largely Democratic, county.

The all-Republican court denied the request without an order or opinion, as justices did last month in a similar lawsuit brought by some of the same plaintiffs.

The Republican plaintiffs, however, are pursuing a similar lawsuit in federal court, hoping to get the votes thrown out by arguing that drive-thru voting violates the U.S. constitution. A hearing in that case is set for Monday morning in a Houston-based federal district court, one day before Election Day. A rejection of the votes would constitute a monumental disenfranchisement of voters — drive-thru ballots account for about 10% of all in-person ballots cast during early voting in Harris County.

After testing the approach during the July primary runoff with little controversy, Harris County, home to Houston, set up 10 drive-thru centers for the fall election to make early voting easier for people concerned about entering polling places during the pandemic. Voters pull up in their cars and, after their registrations and identifications have been confirmed by poll workers, are handed an electronic tablet through their car windows to cast ballots.

In a last-minute filing to the Supreme Court, litigious conservative Steven Hotze and Harris County Republicans state Rep. Steve Toth, congressional candidate Wendell Champion and judicial candidate Sharon Hemphill sought to have the votes declared illegal. They argued that the drive-thru program was an expansion of curbside voting and under state election law should only be available for voters with disabilities. The same argument had been made in an unsuccessful previous legal challenge from Hotze and Hemphill — along with the Harris County Republican Party — filed at the state Supreme Court hours before early voting began.

Curbside voting, long available under Texas election law, requires workers at every polling place to deliver onsite curbside ballots to voters who are “physically unable to enter the polling place without personal assistance or likelihood of injuring the voter's health." Posted signs at polling sites notify voters to ring a bell, call a number or honk to request curbside assistance.

The Harris County Clerk's Office argued that its drive-thru locations are separate polling places, distinct from attached curbside spots, and therefore can be available to all voters. The clerk's filing with the Supreme Court in the earlier lawsuit also said the Texas secretary of state's office had approved of drive-thru voting. Keith Ingram, the state's chief election official, said in a court hearing last month in another lawsuit that drive-thru voting is “a creative approach that is probably okay legally," according to court transcripts.

Plus, the county argued in a Friday filing that Texas' election code, along with court rulings, have determined that even if the drive-thru locations are violations, votes cast there are still valid.

"More than a century of Texas case law requires that votes be counted even if election official[s] violate directory election laws," the filing said.

The challenge was the latest in a flurry of lawsuits on Texas voting procedures filed in recent months, with Democrats and voting rights groups pushing for expanded voting access in the pandemic and Republicans seeking to limit voting options. In this case, the lawsuit filed Tuesday asked the state Supreme Court to close Harris County's 10 new drive-thru polling places and not count votes that had been cast at them during early voting.

The court has recently ruled against other last-minute challenges on voting access by noting that the cases were filed too late and that changes to voting procedure during an election would sow voter confusion.

Since the first Republican challenge to drive-thru voting was filed on Oct. 12, the Texas secretary of state and Gov. Greg Abbott had both ignored requests from reporters and Harris County officials to clarify their positions on whether the process was legal. Republican Texas Attorney General Ken Paxton sent a letter to all local election officials claiming that most voters can't legally vote at drive-thru locations, fueling speculation that the all-Republican Supreme Court would use the case to invalidate ballots already cast. The court rejected the case the next week, with a lone dissent from Justice John Devine.

The new challenge by Republicans again asked the court to reject drive-thru voting as an illegal expansion of curbside voting, and went further by also asking the court to issue an order rejecting votes already cast.

“Unless stopped, illegal votes will be cast and counted in direct violation of the Texas Election Code and the United States Constitution and result in the integrity of elections in Harris County being compromised," the petition to the court said.

The county clerk's office countered that the first challenge to drive-thru voting had already been denied, and the second filing came much too late.

"Hotze filed a petition contesting drive thru locations on the third day of early voting which this Court already denied," the clerk's Friday filing said. "He filed this second petition two and a half weeks into early voting, six days before Election Day, and after fifty percent of registered voters have already voted."

The tens of thousands of votes are still in flux, however, as the federal courts now weigh the issue. Hotze and the others asked the district court this week to toss the votes, arguing the county's implementation of drive-thru voting violates the U.S. Constitution. The campaign of Texas' Democratic U.S. Senate candidate, MJ Hegar, along with national Democratic campaign groups have asked to intervene in the lawsuit — following a national trend in Republican-led fights against voting expansions during the tumultuous election.

Disclosure: The Texas secretary of state 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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