El Paso District Attorney Bill Hicks on Tuesday indicted 140 migrants who are accused of “rioting” near the border wall on April 12 after a county court judge a day earlier found the state showed no probable cause to arrest them and dismissed the cases.
Hicks said he convened a 12-person grand jury to review the case and answer the question of whether Texas Department of Public Safety troopers had probable cause to arrest the migrants. The jury signed off on the indictments, he said.
At least 300 people made their way past a temporary fence on the U.S. side of the border on April 12 in an attempt to turn themselves into Border Patrol agents at the border wall. Of that group, 142 were charged by state officials with a class B misdemeanor, an offense that can result in up to 180 days in jail or a $2,000 fine.
Two of the 142 cases were not dismissed on Monday because one of the suspects was already in federal custody, and the other was charged with a different crime – criminal mischief – instead of riot participation.
“When we took the broader case to the grand jury, we presented the case as a whole, we presented videotape evidence of what happened. The grand jurors believed that there was, in fact, probable cause,” Hicks said during a Tuesday press conference. “Those cases are now being processed through the system and will go back into the court system as live cases.”
Judge Ruben Morales, of El Paso County Court at Law No. 7, on Monday dismissed the cases after reviewing an affidavit, ruling that there was not enough probable cause provided by the state.
Hicks acknowledged that it’s rare to put a misdemeanor case in front of a grand jury, which he said are typically convened only for felony cases.
“The grand jury indictment is essentially a brand new case,” he said.
El Paso County Public Defender Kelli Childress said Tuesday that Hicks’ office has no evidence against her clients and said the move to indict them under a grand jury was “horrific.”
“People are released from the custody of the sheriff at noon. And two days later, (Hicks) is seeking warrants to re-arrest them for a case that a judge already said there’s no cause to pursue,” Childress said.
“They have no witnesses. They have no evidence,” she said.
Hicks said the evidence against the migrants charged with rioting “is that that individual is part of the group.”
“Through videotape, we know that the group is a concise group,” he said. “If you’re a part of the group that is committing a criminal act, you know that you’re part of that group, you know that the group has committed a criminal act, then you are guilty of the offense of riot.”
The affidavits filed by DPS troopers didn’t identify anyone who actually witnessed the migrants riot.
The arrested migrants had a federal immigration “detainer” placed on them. A migrant with a detainer is released from jail in El Paso within 48 hours of booking, and then handed to federal immigration authorities.
Childress argued that DPS troopers were blocking the migrants – who mostly came from Venezuela – from legally surrendering themselves to U.S. Border Patrol agents to request asylum.
“Their ability to get to that gate once they’re in the country is their right. And to put up those obstacles is unlawful,” Childress said, referring to the concertina wire and chain link fencing that the Texas National Guard have placed along the Rio Grande to deter migrants from crossing.
Childress said the migrants have already been transferred from El Paso County Jail to the custody of U.S. Immigration and Customs Enforcement.
The issue of where to house migrants accused of riot charges came up last month after over 200 migrants were arrested for allegedly participating in a separate fracas near the border wall on March 21. The Downtown county jail was able to house the migrants only because a contractor had just finished up work on wastewater piping at the jail and freed up three floors of bedspace a couple of days before that mass arrest last month, according to Sheriff Richard Wiles.
“There is no reason for our jail to pay to house 140 people at $100-plus per day when those people, A, aren’t charged with a crime, and B, have already been found to not be subject to those charges,” Childress said.
But while they’re in federal custody, Childress said she can’t meet with the migrants she’s representing.“They don’t even know they have a lawyer,” she said.
While none of the migrants who were arrested have accepted a plea deal, Hicks said he’ll allow each of the migrants a misdemeanor plea offer that would include time served.
“And then they’d be released to Border Patrol, and either some people will be deported, or some people are going to get released,” he said.
A Republican appointed to the position by Gov. Greg Abbott in late 2022, Hicks said immigration cases are “not the emphasis of the District Attorney’s Office.” But he pursued the cases, he said, to deter others from rioting and “knocking down barriers (and) endangering lives.”
