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Saturday, December 9, 2023
Courthouse News Service
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Texas governor’s border security initiative challenged in federal court

In effect for over a year now, Operation Lone Star seeks to crack down on illegal entries into Texas. But migrants argue it is rife with civil rights violations.

AUSTIN, Texas (CN) — A federal class action filed Wednesday by a group of migrants challenges the constitutionality of Texas Governor Greg Abbott’s controversial border security initiative known as Operation Lone Star.

In their complaint filed in Austin federal court, the migrants argue the operation violates federal law and they're asking a judge to enjoin Abbott and the state from enforcing it. The 15 named plaintiffs were arrested under the program and six of them remain incarcerated.

Abbott, a Republican, launched Operation Lone Star in March 2021, sending thousands of state troopers and National Guardsmen to the southern border, claiming the goal was “to do the job Washington would not do.” That job, according to the governor, is to deter illegal entry into the United States via the over 1,200 mile-long border Texas shares with Mexico.  

“I refused to stand by and let our state be overrun by criminals, deadly drugs like fentanyl and victims of human trafficking,” Abbott said in a video last month commemorating the first anniversary of the operation.

The lawsuit challenging the program claims it has been a ploy to target migrants “under the guise of state criminal trespass law.” In addition to Abbott, the complaint names as defendants the leaders of the Department of Public Safety and Department of Criminal Justice and the sheriff of Kinney County.

“Using state criminal law, the state of Texas and participating counties have created, and are carrying, out what is, in reality, a system of state immigration enforcement that targets Black and Brown – primarily Latino – individuals for prosecution and enhanced punishment,” the complaint states.

In their 98-page filing, the plaintiffs argue that the state has used criminal trespass laws to detain thousands of migrants and process them through a separate criminal prosecution system. Throughout this process, the plaintiffs assert the system is latent with civil rights violations such as “fraudulent probable cause affidavits, failure to appoint counsel, failure to timely file charges, over-incarceration, and even the unilateral replacement of judges.” 

Abbott announced earlier this month that the program has led to over 233,000 apprehensions and more than 11,000 felony charges. He has also touted the confiscation of thousands of weapons and millions of doses of fentanyl. The plaintiffs challenge the governor on his claims, arguing that the governor has exaggerated the numbers. 

Susan Hutchison, a civil rights attorney with the Fort Worth law firm Hutchison & Foreman, represents the migrants. She said in an interview Thursday that because the regulation of immigration is a federal matter, Operation Lone Star is unconstitutional. 

"The states can act in furtherance of immigration law, but they have to do so in coordination and cooperation with the federal government," Hutchison said. "Operation Lone Star is quite antagonistic toward the federal government and is not acting in cooperation with federal immigration law." 

In addition, by enforcing the program, the plaintiffs say state troopers are using discriminatory policing tactics in arresting individuals. The complaint cites several affidavits that claim around 95% of individuals arrested are Latino males and troopers are relying on perceived immigration status in finding probable cause for arrest.  

“There is no way to ascertain immigration status through sight, and the narratives’ conclusory assertions indicate that officers are instead relying on racial profiling,” the lawsuit states.

On top of the alleged discrimination, the complaint details how, after being arrested, migrants are placed in holding facilities, appointed counsel and undergo trial in an entirely separate system designed for Operation Lone Star. The plaintiffs argue that this is a direct violation of their Fourth and 14th Amendment rights. 

The Texas Supreme Court has modified the Code of Criminal Procedures to allow individuals arrested under the program to be processed through a separate system.

In addition to shutting down the program, the plaintiffs want a judge to immediately release detainees.

Hutchison believes that Abbott's program is doing little to keep people safe and is wasting millions in taxpayer dollars.

The state is “rounding up thousands of people who have not committed any crime and they are incarcerating them at the taxpayers’ expense," she said.

Abbott has not responded to Wednesday’s lawsuit. Operation Lone Star has received $3 billion in state funding and is a core piece of Abbott’s reelection campaign.

The operation has been widely criticized by Democratic state lawmakers and members of Congress. In January, 13 congressional Democrats from Texas sent a letter to Colonel Daniel Heape, inspector general of the Texas Military Department, calling on him to investigate the work and living conditions of National Guard troops participating in the program. Those who signed the letter include Congresswomen Veronica Escobar of El Paso and Sheila Jackson Lee of Houston as well as Congressmen Joaquin Castro of San Antonio and Henry Cuellar of Laredo.

“As members of the Texas Congressional Delegation, we are concerned OLS is severely eroding the readiness of our National Guardsmen and their ability to be deployed on federal orders,” the letter states.

In addition to Operation Lone Star, Abbott has directed the Texas Division of Emergency Management to transport undocumented migrants to Washington, D.C. Migrants must agree to leave the state to be taken to the nation’s capital. So far, ten buses have transported migrants to Washington.

Abbott defended his actions in a statement last week.

"By busing migrants to Washington, D.C., Texas is sending a clear message: we should not have to bear the burden of the federal government's inaction to secure the border, and the Lone Star State will do whatever it takes to keep Texans safe," he said. 

The governor also called on the Department of Public Safety to conduct enhanced inspections of all vehicles crossing the border into the state. That policy, which has been rolled back through agreements with Mexican governors in states that border Texas, caused widespread delays for truckers and led to bipartisan condemnation.

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