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Cash is piling up in Kinney County from bonds posted to free migrants arrested under Texas border crackdown

By Jolie McCullough, The Texas Tribune

Cash is piling up in Kinney County from bonds posted to free migrants arrested under Texas border crackdown” was first published by The Texas Tribune, a nonprofit, nonpartisan media organization that informs Texans — and engages with them — about public policy, politics, government and statewide issues.

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BRACKETTVILLE — One rural Texas county could rake in some serious cash under Gov. Greg Abbott’s “catch-and-jail” border security initiative from the bonds posted to free migrants imprisoned on low-level trespassing charges.

More than $2 million in bond funds are now sitting in a Kinney County bank account, according to the sheriff’s office and a roster of migrant arrestees obtained by The Texas Tribune. Technically, the money still belongs to family members and supporters who handed over cash to get migrants out of state prisons, but county officials have taken steps that make it difficult for some to get that money back.

Those putting up cash for loved ones are being required to sign away their right to recover the money. Local judges are trying to make defendants attend court in person to qualify to get cash back, even if they’ve since been deported. And for money to be returned, the onus has been put on the migrant to pursue it in court.

Defense attorneys and civil rights groups are crying foul, worried the conservative county is creating a new cash flow from migrants’ pockets to its own coffers. The border community’s total annual budget is just shy of $12 million.

“The bottom line is we have individuals who put up thousands of dollars to get their loved ones out of custody as they’re entitled to under the law,” said Amrutha Jindal, the chief defender for Operation Lone Star with the Lubbock Private Defenders Office. “And even if their loved one followed all the rules of the court and did exactly what they were supposed to do, they haven’t gotten their money back, and that’s really disturbing.”

But Kinney County Sheriff Brad Coe waved away concerns that bonds would be wrongly kept by the county. He suggested that in a new system of aggressively prosecuting migrants on criminal trespassing charges, things will be smoothed out.

“Nobody on the border has prosecuted for criminal trespassing before,” he said. “So are there going to be hiccups? Yes, there are going to be some hiccups.”

In Texas, most criminal defendants are eligible to get out of jail on bail while their cases are pending, typically by posting a certain amount of money to ensure they show up to hearings. If the defendant appears in court and follows any conditions of release throughout their proceedings, the money is supposed to go back to the person who put up the cash or the defendant.

If he misses court or fails to meet other conditions, the county can file to have the bond forfeited and keep the cash.

Since July, when state police began arresting men suspected of illegally crossing the Texas-Mexico border, about 3,000 migrants in Kinney County have been arrested and accused only of trespassing on private property, according to the jail roster obtained this month. More than a thousand of those migrants were released on cash bonds, with the average set at about $2,200.

(Bail bonds companies, which often front the full amount of a defendant’s bail in exchange for a nonrefundable fee, don’t like to bond out migrants, so trespassing defendants have posted the full amount of their bail in cash.)

In recent months, cases have started wrapping up, and some of that money should be going back to the people who posted it. It’s unclear how many people are now eligible to get their money back, but the county clerk said Wednesday only one person has gotten their bond money returned, with a few more checks set to be mailed soon.

The first migrant to have a bond returned did not contest a trespassing conviction after being deported. The man’s court-appointed attorney said she got the money back by driving to Kinney County, asking the judge to have the clerk write a check out to her, and wiring the money to her client in Mexico. Bonds in the handful of other cases are set to be returned by mail after defense attorneys filed motions asking the court to send the money to specific people.

[A minor trespassing case gives Gov. Greg Abbott’s border initiative its first courtroom win]

Some defense attorneys argue that Kinney County officials have erected unnecessary barriers to keep migrants and their loved ones from the cash. In neighboring Val Verde County, for example, the prosecutor has been taking the initiative to ensure that bonds are refunded. And in larger counties, like Harris, defense attorneys say courts have systems set up to begin the refund processes without defendants having to go back to a judge and ask for their money.

“You couldn’t design a better system to forfeit cash bonds than the one Kinney County has come up with,” said Kristin Etter, a defense attorney with Texas RioGrande Legal Aid, a group that has represented hundreds of migrants arrested in Kinney County.

Civil rights groups are particularly incensed by a new county policy that runs counter to typical bond arrangements, and which they argue is illegal and criminal. Texas statute requires that funds be returned to the person who put up the bond — be it a family member, friend or attorney — or, if no one has a receipt, to the defendant.

But Kinney County is now requiring those posting bond for migrant defendants to sign a form waiving their right to the money. Brent Smith, the county’s prosecutor for misdemeanors, said the money instead will be returned to the defendant himself. A majority of men who bonded out have since been removed from the country by immigration officials, however, and the county clerk said he will not mail funds out of the country.

A San Antonio attorney working for Smith told the Tribune the civil rights groups have misinterpreted the policy, which he said is meant to ensure that the defendant and the poster don’t both try to claim the money after a case is resolved. The waiver makes it so cash by default will only go to the defendant, but he said a migrant can ask the court for permission to release it to someone else.

“It is certainly not done that way in order to hamper their ability to get the bond back,” the attorney, Tony Hackebeil, said. “The only reason it’s done that way is to ensure that the bond will be returned to the right person.”

The Texas Fair Defense Project and the American Civil Liberties Union of Texas have condemned the waiver as a way to keep people from taking back money owed to them. Late last month, the civil rights groups sent a cease-and-desist letter to the county.

“While the waivers themselves are facially invalid and unenforceable, even the act of having people sign such waivers — especially family and friends desperate to get their loved ones out of prison — can dissuade them from seeking to recover money that they are rightfully entitled to when criminal cases are resolved,” the civil rights groups said.

Hackebeil conceded the county could probably get rid of the waiver, but would still need a way to make sure multiple people don’t try to claim the same bond returns.

Lawyers have also blasted the county for setting jury trials requiring defendants to show up in person, even if they were removed from the country, setting up the bond to be forfeited for failure to appear in court. Several such trials scheduled for this week were canceled by an appellate court after attorneys complained their defendants would not be able to attend their own trials. The local court had refused to halt the trials.

Finally, migrant advocates have faulted the sheriff’s office for at times failing to even log contact information for defendants or the people posting cash, leaving little indication how a defendant will know when to show up to court, let alone get the money back if it’s not forfeited to the county.

“We have lots of cases where there’s nothing,” Jindal said. “All we know is their name.”

One local bail bondsman, Jerry Everett, said men are often released to immigration officials without any indication of when they are next supposed to appear in court, which will likely cause more people to have their bond forfeited.

“They’re not going to mail a court notice to El Salvador,” Everett said. “How many [failure to appear orders] are they going to have because the people didn’t know about their court date?”

Just west of Kinney, Val Verde County has a system worked out. The Democratic prosecutor has refused to pursue criminal charges against migrants seeking asylum, prompting Texas state troopers to halt trespassing arrests in the county late last year, but other cases have moved forward.

But in cases where Val Verde County Attorney David Martinez is given sufficient evidence to show a bonded out misdemeanor defendant has since been deported, he said he dismisses the case — deeming the effort to bring them back to stand trial not worth it for a trespassing offense.

“If I’m assured that the defendant has been deported, I have no interest in keeping a case open to try to get the defendant back in Court,” he said in a text message.

Once the case is dismissed, Martinez’s office sets in motion a process for the court to release the bond funds back to the person who posted them, as Texas law dictates. Val Verde County Sheriff Joe Frank Martinez said he has mailed checks to about 50 people.

Whether they are intentional or not, a University of Houston law professor with expertise in bail practices said Kinney County’s waiver and other roadblocks to rightful owners receiving their money back looks bad.

“The fact that there’s this attempt to deprive people of a legally defined right to pick up that money suggests that there’s an effort here to make it easier for the county to keep money,” said Sandra Guerra Thompson. “It doesn’t really pass the smell test.”

Disclosure: University of Houston has been a financial supporter 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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