Texas Tribune
West Texas drag show becomes a First Amendment battleground
by William Melhado, The Texas Tribune – 2024-03-22 05:00:00
SUMMARY: West Texas A&M University students Bear Bright and Marcus Stovall organized an on-campus drag show titled Don't Be a Drag, despite last year's cancellation by President Walter Wendler. Wendler had previously banned a drag show, citing degradation of women, and his action sparked a lawsuit over First Amendment violations. Although the Supreme Court chose not to intervene, Wendler once again prohibited the show, aligning his reasoning with Senate Bill 12, which limits drag performances. The legal battles over free expression and LGBTQ+ rights continue in Texas, with the drag show prohibition adding to the state's conservative actions against queer communities.
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West Texas A&M University students Bear Bright and Marcus Stovall held their breath for months.
Yes, university President Walter Wendler canceled last year's on-campus drag show. But as a lawsuit accusing Wendler of violating students' First Amendment rights wended through the courts, Bright and Stovall booked a student center banquet hall, secured insurance and organized nearly a dozen performers for the Don't Be a Drag performance slated for Friday night.
The two students at the university in Canyon, about 20 miles south of Amarillo, didn't approach the new event as a salvo in the larger battle over freedom of expression in America that is still pending before the 5th U.S. Circuit Court of Appeals. To them, it was about producing a joyful student performance celebrating queer identities — the kind of show that happens every night without controversy in other parts of Texas.
Still, they knew that any time, Wendler could block the show from happening on campus. But they also thought that Wendler's reasoning for the previous cancellation exemplified a public official stifling expression because he disagrees with the content — and was the kind of clear-cut censorship the federal court system would prevent from happening again.
But last week, the U.S. Supreme Court dashed those hopes. The high court refused, at least for now, to wade into the case and its free speech debate. On Monday, Wendler did exactly what Bright and Stovall feared: He again forbade a drag show from being performed on campus.
“It was very discouraging and depressing at first,” Bright said.
The Supreme Court only declined to block Wendler from canceling another drag show while a lawsuit over the previous cancellation plays out at the appellate level. Justices were not considering the underlying legal arguments about whether Wendler abused his authority to squash the performance on the basis of his disapproval of the students' viewpoints. Those questions are still before the 5th Circuit court, which has also declined to issue an injunction against Wendler until it hears arguments in the case in April.
The West Texas lawsuit comes a year following Republican state lawmakers' attempt to classify all drag shows as obscene. But after a video of a male GOP legislator wearing a dress for a school theater project surfaced, state leaders scrapped that version of a bill and eventually passed a law that prohibits certain drag performances in front of children. But even that watered-down version of Senate Bill 12 has been deemed unconstitutionally overbroad and vague. An appeal of that decision is also before the 5th Circuit.
SB 12 came on the heels of an anti-drag panic whipped up by a small but influential cadre of activists and extremist groups who routinely characterized all drag as inherently and nefariously sexual, regardless of the content or audience. Such claims were then used to justify harassment of the LGBTQ+ community, often under the guise of protecting children.
“It's part of the national mentality,” said Claudia Stravato, a part time state and local government faculty member at West Texas A&M. “We kind of get morally hysterical in this country every few years.”
The potential constitutional showdowns over drag shows also come in an era when Texas officials have relied on new state laws, the attorney general's office and a newly conservative Supreme Court to help redraw the legal boundaries on everything from abortion and illegal immigration to what kinds of health care transgender children can access.
And as a legal limbo persists, LGBTQ+ residents like Bright and Stovall acutely feel politically and socially targeted in a part of the state where cultural acceptance of queer people already lags behind the state's big cities.
“It kind of feels like that LGBTQ+ and queer people aren't welcome anywhere near here,” Bright said Thursday, still recovering from Wendler's disorienting cancellation earlier this week. “Just because we're gay or bi or trans … we're just not allowed to exist in this area.”
“Your own path”
Myss Myka is one of the most prominent drag queens in the Texas Panhandle with a performance career that's spanned nearly a decade. Based in Amarillo, she's mentored a number of drag artists over the years, including West Texas A&M students.
She was all set to host the on-campus show Friday, before Wendler canceled it.
The need for student-led drag shows, she said, is to create a sense of community for young people who are questioning their place in the world and trying to find connections in it.
“We tell people that, ‘We're here for you, we'll answer any questions that you have and, most importantly, we want you to be able to find your own path and find people who you can share your struggles with,'” Myka said.
Throughout the years, Myka has noticed the queer-friendly community in Amarillo grow. With a population of more than 200,000 Amarillo is by far the largest city in the Panhandle. But it anchors a largely rural region that remains a staunchly conservative area that is several hours away from any of Texas' sprawling metro areas where drag shows are routine and LGBTQ+ people hold public office.
Myka said the strength and influence of the region's religious groups and extremist organizations fuels safety concerns every time she takes the stage.
Stovall, who had planned to perform on Friday dressed in an homage to English novelist Clive Barker's character known as Pinhead in the movie “Hellraiser,” shares those safety concerns living in Canyon south of Amarillo.
“If I tried to hang up a pride flag in my window, I'd probably get a rock through it within an hour,” Stovall said.
After last year's drag show was canceled, organizers eventually found a venue off-campus where they staged a make-up performance. Myka hosted that show. With Friday's showcase canceled, she's now focusing on emotionally supporting performers as they figure out what to do next.
“As queens, we're always kind of prepared for any kind of situation we're in,” she said.
Same subject, different conclusions
Since taking the helm of West Texas A&M in 2016, Wendler, who is known for his outspoken Christian beliefs, has presented himself as the answer to what conservative lawmakers and activists see as a proliferation of liberal agendas and silencing of conservative views in higher education.
When he banned student-led drag shows on the university's campus last year, he said it was because the performances degrade women.
“No one should claim a right to contribute to women's suffering via a slapstick sideshow that erodes the worth of women,” he said at the time.
He cited those same reasons in another all-campus email on Monday, canceling the second show. He also pointed to the new state law, SB 12, as a reason for denying the students' permit. Originally billed as legislation that would prevent children from seeing drag shows, lawmakers eventually landed on language that doesn't directly reference people dressing as the opposite gender. Instead, the legislation prohibits any performers from dancing suggestively or wearing certain prosthetics in front of children.
A federal judge in Houston blocked the state from enforcing the law and issued a 56-page ruling concluding that Texas' new law was so vague that cheerleading and dancing could be construed to be violations.
“Drag shows express a litany of emotions and purposes, from humor and pure entertainment to social commentary on gender roles,” the ruling reads. “There is no doubt that at the bare minimum these performances are meant to be a form of art that is meant to entertain, alone this would warrant some level of First Amendment protection.”
Organizers of the drag show said it was disingenuous for Wendler to cite SB 12 as a reason to shut down the performances since the law currently can't be enforced.
“That just really miffed me,” said Bright.
When he and Stovall sought court relief from Wendler's previous drag ban, their case came before U.S. District Judge Matthew Kacsmaryk, the sole sitting judge in the Amarillo federal court district and an outspoken opponent of LGBTQ+ rights. Former President Donald Trump appointed Kacsmaryk to the bench in 2019. Before that, the judge was deputy counsel for the First Liberty Institute, a deeply conservative religious liberty law firm.
Republican Texas Attorney General Ken Paxton and private litigants frequently file their most contentious lawsuits in Kacsmaryk's court. And on everything from immigration and abortion drugs to teens' access to confidential contraception, they largely achieved their desired outcome.
Unlike the Houston judge who blocked Texas' so-called drag show ban, Kacsmaruk ruled that not all drag shows could be considered “expressive conduct” and he sided with Wendler.
Now both cases, one against SB 12 and one against Wendler, are before the U.S. 5th Circuit Court of Appeals. Oral arguments in the students' case are slated for April.
Peter Steffensen, a law fellow with the First Amendment Clinic at Southern Methodist University Dedman School of Law, said the appellate court now has to grapple with a situation in which two lower courts came to different conclusions on the same subject matter.
“It's a real concern about whether or not the court will impose some sort of rule that restricts the free expression of ideas and performance art in order to, as they say, protect minors,” Steffenson said. His law clinic filed a brief in support of the students.
Across the country, other federal courts are fielding similar questions. In November, the U.S. Supreme Court refused to reinstate a Florida law that penalizes businesses for allowing children to view drag shows until a lower court fully considers the case.
A surprise rejection
Wendler is not the only Panhandle official to effectively block a drag show.
The Amarillo Area Transgender Advocacy Group's Easter event in a Canyon park last year featured drag performers, including Myka. One protester showed up wearing military fatigues and flashing the Nazi salute. But organizers positioned food trucks in a way that blocked him from most attendees' sight.
Off-duty police officers hired as security told AATAG board president Sam Burnett, who is transgender, that they had no issues, found the organization easy to work with and offered to serve as security again this year.
But when AATAG filed for a permit for this year's event, Canyon officials denied them, saying police officers last year witnessed public safety issues and lewd behavior.
“The group's permit was denied due to issues at their 2023 event. This decision was made in an effort to safeguard the use of Canyon's public spaces and all of those who visit them,” Megan Nelson, communications director for the city told The Texas Tribune in a statement.
City officials declined to provide details about the alleged issues, but said the group's application fee had been returned.
If police officers did witness something inappropriate at the 2023 event, “Why was it not addressed then? Why was it not addressed for an entire year?” Burnett wondered.
Burnett said city officials cited the state's obscenity law in denying this year's application. But that doesn't make sense to him.
“This is no different than women who are competing in a pageant,” Burnett said of drag shows. “It is a performance of art. And so why should any performance of art be hidden or not accessed?”
Burnett and other Panhandle residents said the political environment has become increasingly hostile to LGBTQ+ residents, mirroring much of the rhetoric lawmakers in Austin have adopted to push legislation attempting to reshape the lives of queer Texans.
During the 2023 legislative session, Republican lawmakers successfully barred transgender university athletes from participating on sports teams that aligned their gender and banned adolescents from accessing gender-transitioning care like puberty blockers and hormone therapy.
The author of that health care ban for trans kids was state Rep. Tom Oliverson, R-Cypress, who announced Thursday that he will challenge incumbent Texas House Speaker Dade Phelan, a fellow Republican, for the leadership position. Top GOP leaders have attacked Phelan as insufficiently conservative as they attempt to push the Legislature further rightward.
But there have been local political battles, too, Burnett said. His group first hosted an LGBTQ+-friendly Easter event in 2022 after Canyon Independent School District was pressured to remove a suicide prevention program that mentioned LGBTQ+ people.
“There is a curriculum that is being used as a teen suicide prevention curriculum that features a transgender individual and is, in our belief, therefore promoting transgenderism to high school students,” Trinity Fellowship Church Senior Pastor Jimmy Witcher said during a Sunday service in February 2022.
He added the program was supported by pop star Lady Gaga, “so that kinda tells you everything you need to know about it.”
Canyon ISD did not respond to the Tribune's questions, but a page on the district's website that provides information about several hot-button issues titled “Just the Facts” says that the the Board of Trustees adopted Hope Squad — a different curriculum — as the suicide prevention program.
During the 2023 school board elections, a major issue among candidates and voters was how — or whether — schools should support LGBTQ+ students. An informal hotline Burnett's group set up from LGBTQ+ rang nonstop during that election cycle.
“We get so many phone calls at all hours of the day,” Burnett said. “We're not a suicide hotline, but at the same time I'm not going to let somebody not call and at least have somebody to talk to.”
Waiting, undeterred
John Hintz was a 22-year-old gay man when he moved to Amarillo. He actually found support and understanding at his church, a member of what's called the Open and Affirming Congregations of the Texas Panhandle.
Hintz said that the network's approach to LGBTQ+ people is vital at a time when political and social rhetoric — especially toward transgender people — can be so hostile.
“Particularly when you think about young people, knowing that they have people out here, that there are people that will support them and believe them,” Hintz said.
And, Hintz notes, not everyone in the Amarillo area takes issue with transgender people or drag shows. He said many have reached out with words of support and comfort.
For young residents like Bright and Stovall, the events over the last few years have made it clear that the mere existence of queerness makes some people upset.
“They, royally, would rather have us just hide away and pretend that we're all straight Christians in this area,” Bright said.
As of Thursday, the students were planning to reschedule the canceled show, which will require some nimble planning to secure a new, off-campus venue and find a date that works for the other drag artists.
And with a potentially highly consequential court hearing scheduled for their lawsuit on April 15, they're back to holding their breaths.
This story was supported by the Trans Journalists Association.
Disclosure: Southern Methodist University and West Texas A&M University 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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Anti-abortion deposition requests generate fear, not results
by By Eleanor Klibanoff, The Texas Tribune – 2024-05-10 05:00:00
SUMMARY: Anti-abortion activist Jonathan Mitchell has filed several legal petitions in Texas, aiming to investigate those involved with facilitating abortions, including abortion funds and women who seek out-of-state procedures. Although judges have not approved these petitions, they have spurred fear and confusion. Mitchell was granted one petition to depose a woman who had an abortion out-of-state, but that ruling is on hold pending appeal. Legal experts argue that Texas abortion laws and federal protections for interstate travel make it unlikely for Mitchell's tactics to succeed. However, his method of incremental legal challenges aims to create uncertainty and exploit legal gray areas, using the fear of litigation to deter people from supporting or accessing abortion services.
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Anti-abortion legal crusader Jonathan Mitchell has filed at least seven legal petitions in Texas in recent years asking to depose abortion funds, providers and researchers. While these filings have created fear and confusion, none have yet to be approved by a judge.
Now, Mitchell has moved on to targeting individual women. He has filed at least two petitions seeking to depose women he claims traveled out-of-state to terminate their pregnancies, one of which a judge granted; that ruling is on hold while an appeal proceeds.
Under state law, the person who terminates a pregnancy cannot face criminal or civil penalties. Texas abortion laws govern in-state conduct, and there is broad constitutional protection for interstate travel. A federal judge has previously ruled abortion funds are likely safe from prosecution, and just this week, a federal judge in Alabama upheld the right to leave the state to seek medical care that is legal in another state.
All of this would make it difficult, if not impossible, to take action against someone who assisted a Texan in getting an out-of-state abortion, legal experts say. But Mitchell has made his name turning long-shot legal theories into the law of the land through exactly this strategy of incremental, often losing, legal battles that exploit confusion about the law.
“These … proceedings are just about scaring people into thinking they can't help somebody going out of state to have an abortion, or they're going to go after them with a lawsuit,” said Charles “Rocky” Rhodes, a professor at South Texas College of Law Houston. “It's not about a lawsuit, it's about using fear to induce compliance.”
Rule 202 petitions
Most states, and the federal judiciary, allow a lawyer to depose someone before a lawsuit is filed to preserve their testimony. It's most commonly invoked when someone may die before the lawsuit is filed.
Texas, however, goes much further, also allowing lawyers to depose someone for the purpose of investigating a potential claim before filing a lawsuit. This provision went largely unnoticed and unused before the judiciary revised its rules in 2000 and combined it with the more typical pre-suit deposition rule, said Lonny Hoffman, a professor at the University of Houston Law Center.
“This is a very unusual animal,” Hoffman said. “We're allowing people to use the court system, the coercive power of the state, to compel someone to give testimony before a lawsuit has been brought against them.”
Conservative Texas courts, typically not so friendly to plaintiffs, have slowly imposed stricter restrictions on when they agree to grant Rule 202 petitions, Hoffman said. In 2011, the Texas Supreme Court ruled that the “intrusion into otherwise private matters authorized by Rule 202 outside a lawsuit is not to be taken lightly,” and “is not a license for forced interrogations.”
When used correctly, Rule 202 petitions can diminish frivolous lawsuits and save time, Rhodes said.
“There are strong policy reasons for the rule. I think it's a good rule,” he said. “It's just being abused here. This is harassment, and contrary to the very purposes of the rule.”
Petitions filed against women
The two petitions Mitchell has filed against women who allegedly traveled out-of-state are similar. Both were filed by ex-boyfriends who say they disagreed with their former partner's decision to get an abortion. The petitions assert each woman's mother influenced her to have an abortion.
One petition, first reported by The Washington Post, was filed last month and is sealed. The woman is represented by the Center for Reproductive Rights, which declined to make her available for an interview.
“I think anyone would agree that it's pretty terrifying to be told that you might be sued for doing something that is entirely legal,” said senior staff attorney Molly Duane. “The petition uses the word murder 23 times. This is just not a normal document for anyone to receive and I think the inflammatory nature of it is by design.”
Duane reiterated that it is legal to travel to a state where abortion remains available to terminate a pregnancy.
“This is part of a yearslong campaign by Jonathan Mitchell and other abortion extremists to intimidate people into chilling their own constitutional activity,” Duane said.
The other petition, which has not been previously reported, was granted by a judge earlier this year. The Texas Tribune is not naming either party, or the jurisdiction in which it was filed, since no lawsuit has been filed and the woman named in the filing has not been accused of a crime. Her lawyer declined to comment.
The deposition in that case is on hold while an appeal proceeds.
In a brief, the woman's lawyers argued that granting the petition would be “repugnant to the liberty interests that Texas fiercely protects,” by validating the petitioner's “scheme to harass an ex-girlfriend who has moved on from her relationship with him.”
Both petitions claim to want to investigate potential violations of Senate Bill 8, also known as the “Texas Heartbeat Act,” which prohibits anyone from “aiding or abetting” an abortion after about six weeks of pregnancy. But that law, which Mitchell helped design, only applies to abortions performed by Texas-licensed physicians. While the U.S. Supreme Court allowed the law to remain in effect, a state judge found it unconstitutional, a case that is still moving through the courts.
“It is helpful for them to just have this [Rule 202] threat rather than actually litigate,” Rhodes said. “Because if an actual challenge arises and it's determined that somebody cannot actually sue under SB 8, that would make the law entirely toothless.”
The petitions also hint at future wrongful death lawsuits, which cannot be brought against the person who terminated their pregnancy. Mitchell previously filed a wrongful death lawsuit against women who allegedly helped their friend obtain medication to terminate a pregnancy in Texas. That case is still pending in Galveston.
In a filing, the lawyers in the case now on appeal noted the risk to women across the state if judges began green-lighting Mitchell's strategy.
“A Rule 202 petitioner would be entitled to depose and seek documents from any woman who is not now pregnant, but was rumored to be at some time. Any woman who has a miscarriage could be subject to a forced interrogation. Any scorned lover could harass or intimidate their ex … for simply receiving a false-positive pregnancy test,” the lawyers wrote in their brief.
“Someone who has sex and then gains and loses weight may be forced to produce documents proving that she did not violate a wrongful death statute or SB 8,” they wrote. “The implications of a grant of this petition on the personal freedom and liberty of women to simply exist in Texas without being forced to answer to any ideologue anywhere in the world … are staggering.”
Other petitions
None of Mitchell's previous Rule 202 petitions have resulted in anything other than extended legal battles. He has filed at least nine, including three against abortion funds that help people travel out-of-state.
Two of those cases — one against the Lilith Fund, filed in Jack County, and another in Denton County against the Texas Equal Access Fund — were nearly identical. In each case, the funds countersued and Mitchell moved to dismiss their suits.
The judge on each case ruled differently — one granted the dismissal, the other denied it — and, complicating matters further, two three-judge panels from the same appeals court also disagreed. Both cases will likely go to the Texas Supreme Court.
Meanwhile, in Hood County, Mitchell filed a Rule 202 petition against the San Antonio-based Buckle Bunnies Fund. A judge denied the fund's motion to dismiss. That case is on appeal at the 2nd Court of Appeals in Fort Worth, which issued the dueling opinions in the Jack and Denton county cases.
In a rare move likely intended to address the discrepancies between the rulings, the appeals court voluntarily said it would hear this case en banc, before all seven judges, on May 22.
Mitchell filed two Rule 202 petitions against abortion providers that left Texas after the overturn of Roe v. Wade, which are still pending. He has also filed petitions against Sidley Austin, a law firm that said it would pay for Texas-based employees to travel out of state to get an abortion, and an abortion researcher at the University of Texas at Austin.
None of these petitions have resulted in any depositions, let alone any lawsuits. But they have generated a lot of fear and confusion, which legal experts say is largely the point.
“What's so clever about [Rule 202 petitions] is that they never have to sue,” said Hoffman. “They just have to threaten to get the woman in front of a court reporter and force her to answer questions, and it has exactly the chilling effect that they want.”
In a statement, Mitchell reiterated his claim that abortion funds and employers that pay for out-of-state abortions are potentially vulnerable to criminal prosecution and civil liability.
“Conduct taken inside Texas that procures an abortion is a criminal act under the state's pre-Roe abortion ban, even if the abortion occurs out of state,” he said, referring to 19th century laws that were on the books before the Supreme Court ruled in Roe v. Wade in 1973.
The question of whether those laws remain in effect has not yet been fully resolved by the courts. But a federal judge has preliminarily ruled that abortion funds are likely safe from prosecution.
But Mitchell has made his career working the margins of the law, pushing on weak spots until he finds a way in. He successfully circumvented the constitutional protection for abortion with SB 8, and has been a leading voice in getting the U.S. Supreme Court to consider reviving the Comstock Act, a zombie law restricting the mailing of abortion drugs, which hasn't been enforced for over 100 years. He's been advising towns and cities that want to pass so-called “travel bans” that prohibit the use of municipal roads to transport someone leaving the state for an abortion.
“He's been harassing the funds and abortion support networks for years, so it's not a new tactic,” said Elizabeth Myers, a Dallas attorney who represents the funds. “But now that target has expanded to actually include pregnant women, which they've said they would never target. This was always where they were going to go, and now we're here.”
Disclosure: 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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Texas police have charged hundreds of migrants with rioting
by By Alejandro Serrano and Uriel J. García, The Texas Tribune – 2024-05-10 05:00:00
SUMMARY: Migrants rushing an El Paso border gate to enter the U.S. have faced mass arrests by the Texas Department of Public Safety on rioting charges, a strategy now under legal scrutiny. A judge has dismissed over 350 rioting cases related to two border-rushing incidents, although El Paso District Attorney Bill Hicks, appointed by Governor Greg Abbott, secured grand jury indictments to revive these cases against the state's usual practice for misdemeanors. Hicks insists the prosecutions are about law and order, not immigration, while critics see them as an attempt to deter migration using criminal provisions conflicting with federal immigration law. The legal future of the indicted migrants remains uncertain following the judge's dismissals.
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EL PASO — Twice in recent months, hundreds of migrants have rushed a border gate in El Paso in an effort to push past state troopers and National Guard and get into the U.S.
The Texas Department of Public Safety responded by arresting hundreds of the migrants en masse on misdemeanor rioting charges. Now that strategy is being tested in local courts.
Earlier this week, a judge in El Paso dismissed 211 of the rioting cases related to one incident; the same judge had previously dismissed 140 other cases from another border-rushing incident — those cases were revived when the local district attorney took the unusual step of presenting the misdemeanor cases to a grand jury, which indicted all the migrants.
Typically grand juries only review more serious felony cases, while prosecutors present misdemeanor cases directly to judges who must determine if there's enough evidence to support charging someone with a crime.
El Paso District Attorney Bill Hicks has defended his move and says that it is about maintaining law and order, not anything to do with an individual's legal status. Gov. Greg Abbott appointed Hicks to the job after the previous district attorney left office following an effort to oust her amid allegations of incompetence and official misconduct.
“This, at least from the prosecutor's point of view, has nothing to do with immigration,” Hicks said this week. “This is a matter of people committing a crime and destroying property and endangering lives.”
At news conference on Thursday, Hicks defended his decision to present the cases to a grand jury and said his office will appeal Judge Ruben Morales' ruling. He added that the 211 migrants would be released on Thursday. He said that if an appeal's court reverses Morales' ruling he would issue arrest warrants for the 211 migrants whose cases the judge dismissed this week.
“It's proper to take those cases to a grand jury of 12 people in our community and ask those 12 people in our community what do they think,” he said. “It's appropriate that our community has the opportunity to speak.”
Hicks said he is not prosecuting the cases to make any political statement about immigration. He said he is doing so because anyone that “breaks the laws in our community, we will file charges and make sure that that person faces justice in our courtrooms.”
“These cases are not about immigration. These cases are not about politics,” he said. “These cases are clearly about law and order.”
Elissa Steglich, co-director of the University of Texas School of Law's immigration clinic, said the rioting charges appear to be tied to the state's recent push to deter migrants from crossing into Texas — an effort that has put it in conflict with the federal government, which has primary jurisdiction over immigration laws.
“It's hard not to see the arrests as an attempt to enforce immigration law while using state criminal provisions,” Steglich said. “It raises the real tension in that people under the law have the right to seek asylum.”
DPS did not respond to a request for comment about the latest case dismissals. A spokesperson earlier referred inquiries to Hicks' office.
The first border gate rush occurred in March when, according to Hicks, nine migrants at the front of a group of roughly 1,000 asylum-seekers cut through concertina wire and allegedly assaulted National Guard members.
At Abbott's direction, DPS arrested more than 200 of those individuals on misdemeanor rioting charges.
It's a rare criminal charge: Fourteen people were charged with rioting in El Paso County over the last decade before this year's mass arrests, according to county figures. The crime is punishable by up to 180 days in jail or a $2,000 fine.
“If this is their new strategy, I'm hoping they will quickly learn that it's a poor one,” said El Paso County Public Defender Kelli Childress, who is defending many of the migrants. “Arresting people against whom you have evidence that they committed a crime is one thing, but arresting people for the purpose of harassment to add to some sort of deterrent would be a really bad mechanism to curb migration.”
DPS arrested 141 migrants on the same charge following another border gate rush in April.
Morales dismissed 140 of the cases shortly after, ruling that DPS had insufficient probable cause to continue detaining the migrants, who were then turned over to federal authorities.
Following the dismissals, Hicks presented the same cases to a grand jury, which indicted the migrants on the same charges. That led federal authorities to send the migrants back to county custody so they could be served warrants. But the future of the new cases remains unclear after this week's dismissal of the cases against the other migrant group.
On Wednesday, Morales dismissed the cases related to the March incident because prosecutors had convened a grand jury in state court, then took the cases to a county court without a required order transferring the cases between jurisdictions.
“I can't just randomly take cases and hear them without proper orders,” Morales said during a hearing this week. “That's just not the way it works.”
Childress, the public defender, said she is raising the same issue to challenge the charges against the migrants who rushed the border in April.
Immigration-related cases don't end up in Texas courts frequently: U.S. Border Patrol agents typically detain migrants who illegally cross the border and either charge them with suspicion of entering the country illegally — which are handled in federal courts — or send them through an administrative process to quickly deport them. Migrants can also request political asylum.
But in different parts of the Texas-Mexico border, including in El Paso, the state has set up barriers aimed at preventing migrants from surrendering to Border Patrol after they've crossed the Rio Grande.
The El Paso arrests occurred amid the state's ongoing, multibillion-dollar border security initiative, Operation Lone Star, and an escalating fight with the federal government over immigration enforcement. DPS troopers deployed to the border as part of Operation Lone Star have arrested migrants on state trespassing charges since July 2021.
Lawmakers last year approved a new law that would let Texas police arrest people suspected of entering the country illegally on state charges. The law, Senate Bill 4, remains locked in a legal battle between the federal and state government.
Legal experts said the mass arrests like those carried out by DPS on the border can be challenging to prosecute in court.
“The issue in all of these mass crime cases is you need to figure out who did what, which can be very difficult,” said Thomas P. Hogan, a former prosecutor currently teaching at South Texas College of Law Houston. “You need to figure out exactly what conduct each individual engaged in and whether or not it violated the law.”
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We the Texans: Local news and democracy
SUMMARY: The content discusses the importance of digital marketing for businesses in the modern age. It highlights the need for a strong online presence, the use of social media platforms, and the importance of SEO to drive traffic to websites. The article also emphasizes the role of content marketing in engaging with customers and building brand awareness. It concludes with the recommendation for businesses to invest in digital marketing strategies to stay competitive in today's market and reach a wider audience. Overall, the message is clear: digital marketing is crucial for businesses looking to succeed and grow in the digital world.
When local newspapers shrink or shutter, it leaves a gap in news access that other local news outlets struggle to fill, causing news deserts — communities without reliable local news sources. Texans in news deserts struggle to navigate misinformation and often grow to mistrust the media and other institutions.
On Thursday, May 9, The Texas Tribune hosted “We the Texans: Local news and democracy,” as part of our yearlong initiative examining the state of democracy in Texas. In this solutions-focused conversation, Nic Garcia, the Tribune's regions editor, talks with media experts and community leaders about the challenges local communities face and what can be done to ensure Texans across the state have access to reliable local news.
Speakers include:
Mitch Borden, Permian Basin reporter, Marfa Public Radio
Patrick Canty, publisher, Odessa American
Benjamin Toff, assistant professor, Hubbard School of Journalism and Mass Communications, University of Minnesota
Sign up for the “We the Texans” newsletter at trib.it/HNA to get twice-monthly updates on our yearlong initiative dedicated to listening to Texans, boosting civic engagement and exploring how democracy is experienced in Texas. Delivered every other Wednesday.
To watch more events from The Texas Tribune, visit texastribune.org/events.
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