Analysis shows most were old but included 69 DWIs
PRESIDIO COUNTY — Former County Attorney Rod Ponton declined to prosecute 60 driving while intoxicated (DWI) cases and dismissed nine more as he was leaving his office this fall after losing his reelection bid to Blair Park, an analysis of court records showed.
The charges — part of 259 misdemeanor cases he declined to prosecute and another 50 he dismissed — were old, can’t be legally prosecuted and needed to be removed from the county’s court system, Ponton said.
“My assistant and I were trying to make a final, meaningful, review of pending cases, some of which extended all the way back to John Fowlkes tenure as county attorney, and sometimes even earlier,” Ponton said. (Ponton took over for Fowlkes in 2016.) “It ends up, there were a lot of what you might call bad cases, cases that have not been prosecuted for various reasons, frequently due to lack of evidence or to non-availability of an arresting officer,” he said.
Park, who took office as county attorney on January 1, said the large stack of unresolved cases put a stress on the county clerk’s office which is tasked with locating bond amounts and defendant addresses for returns. Park said trying to find out what happened on all 309 charges would not be an effective use of her time, particularly if they were as old as Ponton said. “I have so many things on my plate right now,” she said. “I have to focus on rebuilding.”
The Big Bend Sentinel’s review of records showed that most of the dismissed cases originated in 2023, although several were from early 2024. Misdemeanors have a two-year statute of limitations meaning the 2023 cases would have to have been dismissed sometime this year if they don’t move to a disposition in court.
The majority of dismissed cases — aside from the nine DWIs — were traffic citations, driving with an invalid license and a few other misdemeanors like criminal mischief and criminal trespassing. The traffic violations are a Class C misdemeanor with no jail time, while the other charges were mostly Class B with up to 180 days in jail and fines up to $2,000 — although jail time for those crimes, aside from the initial incarceration, is rare and defendants often face minor fines and community service. The Sentinel could not, as of press time, separate cases from defendants, so the 50 cases dismissed could be a lower number of defendants with multiple charges.
The Sentinel was able to identify 25 instances — of the 259 cases Ponton declined to prosecute — where defendants had multiple charges, bringing the number of actual arrests down to 234. These were cases that were referred to the county attorney from various law enforcement agencies for Ponton to review and decide whether they merited prosecution. The Sentinel was unable to access the files associated with the cases since they were not filed in court, and some of the records like police reports would likely be heavily redacted because they could still be considered open investigations. However, The Sentinel was able to search many of the defendants’ names on the Presidio County Sheriff’s Office Facebook page for mugshots, charges and arrest dates.
Of the 30 arrests found on Facebook, five of which were DWIs, most were from 2022-2023, with one from January 2024. Of the 60 total DWI charges on the decline-to-prosecute list, six were for a second DWI.
One individual was arrested six times over the course of about two years for charges that included DWI, possession of marijuana and criminal trespassing. Ponton declined to prosecute all of those cases. He said possession of marijuana cases, if under two ounces, are typically not prosecuted because the Department of Public Safety’s lab currently refuses to test confiscated marijuana to prove it’s illegal cannabis in misdemeanor cases. Marijuana cases account for 10 of the 259 he declined to prosecute. More serious misdemeanors on the list included three assaults with bodily injury, two deadly conducts, and one indecent exposure.
Park said that at this point the old traffic violations and minor charges aren’t of concern. “But it’s the victim crimes that really upset me … when we’re talking about family violence or child violence, elder abuse, those kinds of situations,” she said.
David Beebe, former Presidio County justice of the peace and now Precinct 4 commissioner, said the ideal situation is for the county to keep cases moving to prevent a backlog. But, he said it takes several positions at the county level — as well as public defenders — to make that happen. Not prosecuting a case can have a significant impact, particularly with DWIs, he said.
“There’s a reason the third DWI is a felony,” Beebe said. “And if you don’t prosecute the second DWI, then you don’t get to the third DWI at that time. So that’s serious.”
Ponton said other issues that cause case backups are victims that can’t be found, lost evidence, or unavailable officer witnesses. For DWIs, DPS officers are almost always called in to file the charges in Presidio County, and those officers often leave, he said. “We get a lot of rookie troopers that come out here for a year at a time, and then they’re gone,” he said. “And they’re not going to come back to trial on a misdemeanor case.”
County Judge Joe Portillo, who presides over County Court for misdemeanor cases, agreed with Ponton on the difficulty with officer witnesses. “We do have a lot of DPS officers that come in for a year or two and then they leave,” said “They’re either not law enforcement anymore or they’re working in McAllen, Laredo, wherever. And it’s too difficult to get them to come all the way back to testify in court. Or somebody misplaced the [dash and/or bodycam] video.”
“You can’t in good conscience prosecute if you don’t have good evidence,” Ponton added. “And it’s not fair to a defendant who has had this hanging over their head for so long to just keep it hanging. You need to have some closure for a person where the state hasn’t followed through to prosecute.”
Extenuating circumstances aside, it is customary for the county attorney to decline to prosecute or dismiss cases when they get to the two-year statute of limitations mark, but that is something Ponton did not do with these cases.
“Many of these crimes probably should have just been dropped in the first place,” Beebe said. “If it comes across your desk and you’re the county attorney, and you don’t feel like it’s serious, then you should just dismiss them when they show up.”
Ponton said some of the cases just happened to fall by the wayside when former County Judge Cinderela Guevara was not holding criminal court during the pandemic from 2019 to 2022. Portillo said his goal is to hold criminal County Court proceedings twice a month.
Ponton stressed that cleaning up old cases was also important to follow state law for Criminal Justice Information Systems reports. Counties are required to electronically submit arrest data to the DPS and then track how many cases have a disposition — convictions, including plea deals, and dismissals. Those that don’t report 90% or more of their cases as disposed are not eligible for any state or federal criminal justice grants.
The stack of cases disposed of by Ponton — most in December — and old cases in general also create a situation where it’s much more likely that a defendant doesn’t get their cash bond back. Most misdemeanors first go to a county justice of the peace who magistrates the arrested — ensuring the defendant understands their rights — and then sets the type of bond and amount. Most misdemeanor bonds are $500, but they can go into the thousands for DWIs or repeat offenders. The longer a case sits in limbo, the more likely people have moved, and the county has no way of knowing where to send a check if their case is not prosecuted.
“There’s no addresses on the refusals to prosecute,” said Presidio County Clerk Carolina Cataño. “What we have on the actual bonds, that’s the only address, unless they have called and updated their address, which a few do, not very many.” Some dismissals have a better chance because they are cases actually on file with the clerk, an arraignment or hearing may have taken place, and it’s much more likely that a defense attorney is plugged into the proceedings and providing addresses, Cataño said. Unless a charged individual or their attorney call in to check on their case, they would never know it was not being prosecuted since they don’t get informed by mail — other than possibly getting their bond money returned.
Any checks returned to the county are held in a special bond account. The process creates the unusual situation where some of the defendants may lose their bond money but are likely never to be prosecuted.
Cataño said the onslaught of cases with bonds released back to defendants created a bit of a logjam — particularly since her staff needed to verify some bonds were released and she had to be approved as a bank signatory. Those roadblocks have been addressed and Cataño said she’s confident that checks from the recent cases will be going out soon.
James McDermott, who heads the Far West Texas Regional Public Defender office — which provides legal representation to defendants who can’t afford a private attorney — said the large number of cases taken out of the system was problematic for his office as well. If no one tells him a client is no longer facing prosecution, those individuals will still be on his client list. He said his office worked with the county clerk to determine who needed to be removed.
Ponton reiterated that the case cleanup was ordinary and intended to help Park start fresh. His assistant, Brenda Pando-Covos agreed. “After the election, my mentality and my work was to try to clean up anything old, because I felt like it was going to be more of a hassle for [Park] to come in and look at four- and five-year-old cases,” Pando-Covos said. “So, everything that was left was fairly new — hasn’t hit the two-year mark.”
“I saw that if I was coming in, I wouldn’t want to have to be dealing with old stuff, period,” she added.