Lifting the hopes of beleaguered border residents, Texas Gov. Greg Abbott pledged to use state law enforcement officers to arrest illegal aliens pouring into the state.
But Texas Attorney General Ken Paxton, a fellow Republican, raised serious doubts about how, or even if, migrants might be prosecuted.
Under Texas law, county district attorneys have sole discretion on criminal prosecutions in their jurisdictions, Paxton said. He noted many cases in which local DAs refused to file criminal or civil charges against illegal aliens.
Of 34 South Texas counties where Abbott has declared disasters due to the border crisis, only half have issued their own declarations. Leaders in the other 17 counties – primarily Democrat strongholds – aren’t necessarily buying in.
“I’m very concerned that [Abbott] wants … municipalities and counties to take on the duties of the federal government with respect to immigration and border security,” complained Richard Cortez, the Democrat county judge of Hidalgo County, the largest in the Rio Grande Valley.
While laws on drug smuggling and human trafficking tend to be clear cut, statutes on trespassing, a common offense cited by Abbott, are open to local discretion. Empowering state authorities to detain and charge trespassing aliens would require the Texas Legislature to broaden the prosecutorial parameters. Paxton notes that lawmakers, now adjourned, have shown no interest in curbing the autonomy of DAs or expanding his office’s authority.
In 2012, the U.S. Supreme Court shot down Arizona’s attempt to prosecute migrants. Abbott indicated last week he believes he has found a way around the 2012 ruling, but wouldn’t say what it might be. Perhaps he’s betting that the high court’s current composition may yield a more favorable outcome. In any event, the Biden administration has created a monumental mess in Texas, and the governor is left with few options beyond a legal Hail Mary.
Meantime, Abbott will need to address the ground-level resistance and statutory limitations in his state. Though the Legislature boosted border security funding from $800 million to $1 billion, Texas’ top legal officer maintains that recalcitrant county lawyers hold a trump card: They can simply decline to prosecute offenders.
With Border Patrol “processing” effectively normalizing industrial-scale illegal immigration, migrants have reason to believe they can ignore Abbott’s tough talk and continue their trek into America, unabated.