Local law enforcement deals with the realities of enforcing the governor’s immigration crackdown

BREWSTER, PRESIDIO COUNTIES – The number of people apprehended for crossing into the United States from Mexico reached a 21-year high, with crossings in the Big Bend Sector rising 357% since last July. Federal prosecutors are bringing charges against some of the people involved in transporting those undocumented immigrants into the country, but starting September 1, Texas lawmakers are empowering state law enforcement to make more arrests for human smuggling and trespassing under new state statutes.

Governor Greg Abbott has called for crackdowns on undocumented immigrants and smugglers, sending state troopers to the border to enforce state and federal immigration law, and sending in the National Guard to assist.

In recent years, those apprehended for smuggling immigrants could be prosecuted under state law if law enforcement could prove the person had been paid to smuggle people, but beginning Wednesday, September 1, new provisions in the state laws say proving there’s a financial motive is no longer necessary for state law enforcement to arrest smugglers.

New language that amends the state penal code also says the person can be charged if they assist, guide or direct two or more people to enter agricultural land without consent from the owner. The third degree felony charge can now ramp up to a second degree felony if there was monetary gain involved, and is a first degree felony if a person they smuggled is sexually assaulted, suffers serious bodily injury or dies.

Brewster County Sheriff Ronny Dodson has encountered smugglers bringing groups of immigrants through the Brewster County countryside countless times, but he’s not always able to arrest them. Those who were somewhat familiar with Texas law have successfully avoided state charges of human smuggling by claiming they did not receive any money in exchange for transporting immigrants.

He said the smugglers transporting undocumented immigrants are most often U.S. citizens. “I’ll get them saying they just found these people on the road. Most of them will say they saw people walking and they needed a ride. It’s B.S.,” he said.

Under the new law, Dodson said, “We’re going to get more people in jail for sure. We’ve had to let numerous people go if HSI [Homeland Security Investigations] doesn’t want them, and then we can’t prove financial gain so we basically have to let them go.” Beginning next week, they can be arrested for smuggling, whether financially motivated or not.

Jails have become a reliable revenue stream for counties in West Texas, receiving daily payments to house U.S. Marshal inmates in the local jails. In Brewster County, it amounts to around $800,000 in revenue per year, with most beds being filled by federal arrestees that bring money to the county. With Abbott’s directive to up arrests on state charges, space in county jails may fill up with state inmates –– who will stay at the cost of county taxpayers –– and lower the available space for paid, U.S. Marshal inmates.

“We just don’t have the jail space to do what everybody wants us to do right now,” Dodson said. “If they’re going to spend all these millions and trillions, I’d hope they’d give it to some of us counties to add jail space and then we’d be able to hold some of these folks.” Recounting an incident from the day prior, Dodson said state officers brought in 10 trespassers, but he only had room to hold three. “The other seven had to go somewhere else, and the county had to pay $65 a day for wherever they go.”

“As far as I’m concerned, regardless of the cost, it’s got to happen,” said Presidio County Sheriff Danny Dominguez, who expressed frustration at the Biden administration’s handling of the increase in undocumented immigrants at the southern border. “We have to prosecute. These smugglers, these criminals, whatever they’re doing, it’s going to cost our taxpayers money.”

Investigations by HSI are turned over to the U.S. attorney’s office for prosecution, but some local law enforcement have said they have made arrests only for the USAO to not take the case. 83rd District Attorney Ori White said, “My office is prosecuting many of these cases where the U.S. attorney‘s office is perhaps very short handed and cannot prosecute them. I don’t know why the U.S. attorney‘s office is not prosecuting these cases.”

White said his office “will continue to take these human smuggling cases so long as we are requested to do so by federal border enforcement officials,” and that he’s happy to help where he can.

“Across the district, particularly in our border divisions, human smuggling prosecutions have increased in the last year,” a representative from the USAO office said in response, stating the office readily accepts cases for federal prosecution “when sufficient, admissible evidence is presented.” Federal prosecutors secured indictments against 89 defendants in July alone, ranging from human smuggling to illegal reentry into the U.S. and drug trafficking cases.

According to court records, human smuggling cases in the USAO have more than doubled from this same time last year. For the governor, state charges are another tool in the arsenal to try to stop southern border crossings.

Along with prosecuting the smugglers, Governor Abbott has encouraged criminal trespassing charges against undocumented immigrants who pass through the hundreds of miles of private land that make up Texas’ border with Mexico. In West Texas, Dodson said purple paint on ranch fence lines in accordance with state statutes –– indicates private property.

To be charged with criminal trespassing, the person has to have credibly known they were on private property. In Del Rio, nine Venezuelans recently served 15 days in state jail for criminal trespassing in the wake of the state’s new crackdown, according to the Texas Tribune. Having served their time, they were handed over to federal Immigrations and Customs Enforcement, who could choose to deport, detain or release the group and ask them to return for a hearing at a later date.

The state Office of Court Administration is preparing for hundreds of arrests a day by state law enforcement in anticipation of the new smuggling and trespassing arrests, which, realistically, would overwhelm the court and local jails.

“If one guy is driving and there are 10 people in the van, we can’t put many groups of 11 people in the jail before it’s overflowing,” Presidio County Attorney Rod Ponton said last month. Sheriff Dodson explained that if his jail fills, the judges start considering releasing arrestees on personal recognizance bonds, where instead of paying a bond that they can’t afford, they are released with the promise to return for a later hearing. At times, those released are never heard from again, and with no permanent address in the U.S., there is little means of recourse.

Dodson said that ultimately, they often have to dismiss those cases so that their disposition rate (a metric they have to maintain, where a certain percentage of cases have to be deposed) isn’t negatively impacted. Dodson wondered aloud, “Are we just spinning our wheels?”

Because of the limited resources, Ponton said it’s unlikely “here in these small counties that we’ll prosecute the illegal immigrants, as opposed to the smugglers. Our hope is that the federal authorities who have the responsibility for enforcing federal immigration law would deport the illegal crossers.”

Ponton, who also assists the district attorney upon request, said the crackdown on smuggling is an attempt to dissuade immigrants and smugglers from entering through the Big Bend region. “We want to substantially increase the prosecution of human smuggling in Presidio County under state law because we want to get the word out to the smuggling gangs that this is not a free ride in Presidio County, and hopefully they would go other places.”

Dodson reflected, “I’ve been sheriff for 21 years, and I’ve been in law enforcement for almost 40, and I’ve never seen someone spend 180 days in jail for a class B misdemeanor.” Under Abbott’s emergency declaration, an agricultural trespassing charge moves from a class C to class B misdemeanor, which can come with up to 180 days in jail.

Earlier this year, the American Civil Liberties Union warned Texas border counties that following Abbott’s version of immigration enforcement could be a Constitutional violation. “Those within the United States have a legal right to seek protection: a noncitizen ‘who is physically present in the United States … irrespective of [their] status, may apply for asylum,’” the letter to county officials read. “Efforts to harshly enforce immigration laws against noncitizens to deter them from seeking asylum or other protection, or to deter others from coming to the United States and seeking protection, may therefore violate federal law.”

Dodson acknowledged that many who cross into the borderlands are fleeing worse conditions.  Escaping natural disasters, violence or unrest in their home country, many are hoping to either claim asylum in the U.S. through a legal process or enter the country entirely unnoticed, which is illegal.

“The governor’s trying to punish them, but he’s actually doing them a favor. They eat, get air conditioning and a bed,” Dodson said. “They figure if we put them in jail for 180 days, that will teach them a lesson, but one thing they’re not understanding is that being in jail is sometimes better than where they are coming from.”