Hired Attorney Representing Lone Star Prosecution Has a Crisis of Opinion
And, Rising Expressions of Support for Vigilantism in Texas?
Good Morning Friends,
We debated publishing a newsletter this morning, given close proximity to some events that are getting a lot of attention in the “Texas Journalist Twitter-sphere.” That’s our own personal name for the informal data ecosystem of Texas journalists all keeping up with each other’s reporting.
Jasper Scherer, a reporter for the Houston Chronicle filed a piece yesterday afternoon, quoting a contracted attorney representing the State of Texas and Kinney County, as saying to the 4th Court of Appeals that he believed Operation Lone Star is a waste of time and money.
As one might expect this touched off a fair scramble of journalists all wanting to reach someone in the County for a comment or a response to the story. It quickly became apparent that some were under the impression that the attorney, a man named David Schulman, is from Kinney County.
Not the case.
Eventually, we were able to reach County Attorney Brent Smith, and draft a formal statement that hopefully avoids having any mistaken bearing on any currently ongoing cases or lawsuits. We’ll paste it here for our readers in just a moment.
First— here’s the Houston Chronicle’s reporting.
An attorney representing a Texas border county participating in Gov. Greg Abbott’s border crackdown called the operation “a waste of time and money” in court on Wednesday, adding that he sees “very little logic” in the state’s move to pursue criminal charges against migrants after they’re deported.
The comments from David Schulman, a private attorney on contract with the Kinney County Attorney’s Office, came during a routine hearing before Texas’ Fourth Court of Appeals, which is weighing whether local officials can continue to prosecute defendants — in this case, migrants accused of trespassing on private property near the border — even after federal authorities have removed them from the country.
State-appointed lawyers for the migrants have sought to end the practice in recent months, arguing their clients’ cases should be dismissed because they cannot prepare for or attend their own trials from other countries, nor comply with court orders to appear for in-person hearings.
In the first challenge to reach the appellate court level — the subject of Wednesday’s hearing — Schulman argued that Operation Lone Star cases will never go to trial for migrants who remain out of the country, making the defense attorneys' concerns legally irrelevant. He pointed to state law that requires a defendant’s presence in court for trial to begin, effectively conceding that the cases of deported migrants would remain in limbo for the time being.
The point drew scrutiny from multiple justices, who wondered why Kinney County wouldn’t go ahead and dismiss cases that, by Schulman’s admission, cannot be prosecuted.
“If you can’t prosecute them, why are you filing charges?” Justice Patricia Alvarez asked.
“That’s a very good question. I cannot answer that,” Schulman responded. “Would I agree that there’s very little logic in this? Yes. But these dockets exist.”
The exchange marked the latest sign of the shaky legal ground supporting Operation Lone Star’s makeshift criminal justice system, established to vet the state charges faced by migrants since state police began arresting them on allegations of misdemeanor trespass and other offenses last July.
The operation has faced a number of setbacks since then, including a wave of lawsuits; suicides, pay issues and low morale among Texas National Guard members stationed at the border; an ongoing Justice Department investigation into alleged civil rights violations; and swelling costs that have forced Republican state leaders to dip into various state agency budgets to keep the program afloat.
Wednesday's court proceedings also offered a window into the complex situation faced by the increasing number of counties participating in Abbott’s $4 billion border initiative, each of which rely on state grant funds to cover costs linked to the operation, including court and jail operations, extra law enforcement and the administrative legwork needed to prosecute criminal cases.
Kinney County’s minimal court system, designed for the county’s population of about 3,100, was quickly overwhelmed by a deluge of cases in the early months of Operation Lone Star. Undeterred, the county’s staunchly conservative leadership has embraced the governor’s border crackdown more than any other county, accounting for the vast majority of arrests and cases.
Schulman, who has formally served as an acting assistant county attorney for Kinney County, suggested that county prosecutors are pursuing charges against deported defendants because doing so bolsters the amount of state funding the county receives.
“The county will not be paid for the prosecution if it’s not on the Operation Lone Star docket,” Schulman said. “ ... The reason they are on a docket that’s styled as Operation Lone Star is because that’s how we have the money to prosecute all these cases.”
Alvarez, the appeals court justice, followed up: “So, it’s not the arrest. It’s the funding that Kinney County’s interested in when prosecuting these cases.”
“I would have to admit that, yes,” Schulman said.
Kinney County Attorney Brent Smith, a Republican who handles the county’s misdemeanor prosecutions, could not be reached for comment.
An Abbott spokesperson did not respond to a request for comment. The governor has touted his border operation as a necessary mechanism for confronting a spike in illegal border crossings under the Biden administration, whose policies Abbott has frequently criticized as overly lax.
He has not directly addressed criticism raised by defense attorneys over the practice of continuing to prosecute migrants after they have been deported.
Wednesday’s hearing revolved around the case of Jorge Favian Dominguez-Ortiz, who was arrested by a state trooper in Kinney County last August. He was released weeks later on a cashless personal bond, along with more than 200 others, after a judge found that he’d been detained for weeks without being formally charged, a violation of state law. He was then turned over to federal authorities and removed from the country.
Throughout the hearing, Schulman insisted the merits of the case were unrelated to Operation Lone Star, calling it a “run-of-the-mill criminal case.” He argued that local officials were required by Texas’ ban on so-called “sanctuary cities” to turn Dominguez-Ortiz over to federal authorities who had placed an immigration detainer on him — after which the state played no role in Dominguez-Ortiz’s removal from the country, Schulman argued.
“Anything that's happening along the border, with the guys in boats and extra people, has nothing to do with this case,” Schulman said. “This was started by a licensed peace officer in the state of Texas affecting an arrest in Kinney County.”
Underscoring his point, Schulman criticized Abbott’s border initiative when asked by a justice if he agreed that “this whole process with Mr. Dominguez has a taste of inherently unfair issues.”
“Not representing Governor Abbott or the state of Texas in any way, I would agree,” Schulman responded. “Do I like this overall thing? No, I think it’s a waste of time and money. But that’s not the issue here.”
The case turns on the question of whether the Texas and U.S. constitutions prevent Kinney County — acting on behalf of the state — from prosecuting defendants who are removed from the country before their cases are resolved.
In April, a local trial court judge sided with Kinney County, denying Dominguez-Ortiz's request to dismiss the case. Dominguez-Ortiz immediately appealed, putting the case on pause since then.
Rachel Garza, an attorney with Texas RioGrande Legal Aid, which represents Dominguez-Ortiz and hundreds of migrants in Operation Lone Star cases, said local prosecutors have “made no effort” to bring cases to trial, with just one case reaching that milestone since arrests began more than a year ago.
She contended that the ultimate goal of Kinney County officials is not to prosecute the cases, but to ensure migrants are deported.
“They simply wait until the defendant is unavailable for trial before they decide to start moving forward on the case, which interferes with their constitutional rights,” Garza said. “... They are not trying to prosecute anybody. And this presents a serious issue. If you're not trying to prosecute anybody, then you're not going to trial. Trial is the most basic right of an accused person.”
Schulman argued that Dominguez-Ortiz could ensure the case moves forward by asking federal immigration authorities to readmit him to the country on parole, for the sole purpose of attending his trial. He said Dominguez-Ortiz had not asked the state for help returning to the country or “for anything other than to be released on bond.”
“If someone has a specific trial date and says, I want to come back, help me get parole, I would advise the county attorney to do what you can to assist,” Schulman said.
In December, Kinney County Judge Tully Shahan — a Republican who has said Texas is “under siege” as “thousands upon thousands of illegal aliens invade” the state — replaced the three state-appointed visiting judges handling most of the county’s trespassing cases, each of whom had been releasing migrants on no-cost bonds as they awaited trial.
The judges were swapped for Shahan’s preferred replacements, who have followed his preferred approach of declining to approve cashless bond releases, keeping migrants behind bars for months if they do not plead guilty or post bail.
—Reporter Jasper Scherer, in the Houston Chronicle
Apologies to our readers and the Houston Chronicle for such a lengthy quote block— pretty much the entirety of the piece. We can only plead for their tolerance, given the paywall at the Chronicle, the sensitivity of the subject, and the need to avoid seeming as though we are being prejudicial in how we approach this for our readers here in the newsletter. Hopefully, fair use and the lack of a profit motive in doing so will be enough to satisfy concerns.
There’s also a youtube video of the entire proceeding in Austin available. About an hour and a half.
Obviously, there are no attorneys hiding in the closets here at the Dispatch. It’s difficult for us to personally judge the merits of what we watched in that video.
Certain professional attorneys that are *not* named Brent Smith have said not to be too overly concerned— seeming to characterize what’s there as something that will ultimately not affect Operation Lone Star.
One imagines there are attorneys elsewhere who would say differently.
Perhaps it’s a matter of assumption in some legal circles that the 4th Circuit was always going to be hostile, no matter the State’s argument, and that an appeal would be inevitable. Who knows? We don’t. We’re speculating wildly there.
Getting back to firmer ground, the quotes are accurate, and the reporting seems consistent with what was expressed on tape. And while one wants to believe Mr. Schulman was trying to speak with an aim toward some measure of nuance on the subject, it seems like it wasn’t clearly communicated to the judges or to those watching.
We’ve been unable to reach Mr. Schulman for any comments personally, but perhaps some will be on offer elsewhere, or we’ll be able to reach him by Monday.
In any event— here is a cut-and-paste of the County Attorney’s statement that we promised earlier:
David Schulman is a talented Appellate Court attorney and comes highly recommended by more than a few folks around the State of Texas. He is an Austin-based contractor hired to represent the county in various legal matters associated with Operation Lone Star that crop up in the appellate realm.
Any reporting that characterizes Mr. Schulman as a "local Kinney County attorney," would be mistaken. The reality of the situation is that Mr. Schulman is an employee who has never visited Kinney County and consequently may have to be forgiven for having an opinion that is at such odds with what the reality is for many county residents.
The opinion that is being attributed to him by the Houston Chronicle does not in any way reflect the opinion of the County Attorney, or the many residents in Kinney County who have been desperately struggling to maintain their livelihood and shield their families from the uncontrolled and chaotic situation on the Texas-Mexico Border.
The County Attorney's Office has no further comment on any matters still presently going before the courts, but it must be noted that from the Month of May, through the first week of August, 15,983 trespassers were documented crossing through private property on camera in Kinney County. Their whereabouts are now unknown.
—Statement issued on Twitter, Thursday Night, on behalf of County Attorney Brent Smith
Should probably note that the Houston Chronicle and Mr. Scherer actually do a pretty decent job of explaining Mr. Schulman’s relationship to the County. But inevitably, people repeating the story online have in some cases been speaking of the man as though he is *the* County Attorney.
What more is to be said? To us here, it seems as though this is just another example that has cropped up as various State organs grapple with each other, trying to settle precisely in what ways the State is able to proceed as it tries to step in the gap between where the Federal Government is presently falling short, and where the current crisis begins.
Turning now to news that touches upon the border shooting in Hudspeth County, perennial favorite of the newsletter, reporter and analyst Todd Bensman is sounding the alarm about what he is calling an increase in expressions of support for vigilantism along the border— fostered by the ongoing failures of the Federal Government to address the crisis in a meaningful fashion.
AUSTIN, Texas — During a recent speech I delivered in early September, two separate members of my audience here in Texas openly voiced a desire to take their firearms to the border and kill illegal immigrants. The two men in my audience had gotten angry with my explanation, during the question and answer part, for why Texas Governor Greg Abbott probably would not be able to legally deport immigrants on state legal authority. One of the men, clearly angry and not quipping, named a particular long-range rifle he thought would work well, as though some thought had gone into this.
As soon as I was alone, I reported what I heard to federal and state law enforcement intelligence.
From my nine years working as an analyst and manager for the Texas Department of Public Safety’s Intelligence and Counterterrorism Division, I recognized what I’d heard as an indicator of domestic terrorism that had to be reported. The next day, I called around among a community of those who advocate for an end to the current mass migration crisis, the worst in American history. I asked if they too were hearing frustrated Texans speak of a compulsion to murder illegal immigrants.
Two of them told me they’d been hearing that extremist sentiment a lot in recent months. They said it came from the fact that President Joe Biden’s administration fomented and encourages the historic torrent through the state’s border with Mexico and Abbott doesn’t seem willing to stop it.
I feel compelled now to write about this brewing, dangerous extremism in light of recent news that the Hudspeth County, Texas, Sheriff’s Office and the Texas Rangers arrested two brothers from Sierra Blanca, Texas, for opening fire September 27 on a group of 13 illegal immigrants who were drinking from a reservoir just off a highway. Mark and Michael Sheppard, who works as a warden at an area ICE detention facility, face manslaughter charges in the shooting death of one immigrant just south of town and of critically injuring another migrant woman. The suspects claim they thought they were shooting at wild javelinas, a species of wild native pigs. But surviving witnesses told police someone in the truck first yelled out in Spanish, “Come out you sons of bitches, little asses.” Liberal illegal immigration proponents immediately alleged the brothers were domestic terrorists who acted out of racial animus.
The investigation, which at least initially included the FBI, hasn’t revealed an undisputed motivation as of this writing. The brothers deny any intentional wrongdoing and were allowed to bond out of jail.
They are innocent until proven otherwise. But I won’t be surprised to learn, if they are judged to have wittingly shot the immigrants, that frustration with state and federal government motivated the brothers and will motivate others.
—Reporter and Analyst Todd Bensman, The Center for Immigration Studies
As our readers yesterday know, the brothers were rearrested with additional charges, but that is not the point here. There is something we’ve been struggling with how to express, as we consider the recent events in Hudspeth County, and the roundly publicized fears in some progressive circles that Operation Lone Star would lead to vigilantism.
It could be argued that the perception of a lack of response in some areas of the state were always bound to contribute to vigilante sentiment. Or to put it in a more plainer fashion: vigilantism sprouts in the perceived absence of policing.
Just witness the growth of anti-cartel vigilantism in the hinterlands of some parts of Mexico.
One could argue that it is the virility of the local response to the crisis and the heavy presence of DPS Troopers in the Del Rio sector that has had a reassuring effect on the population in this bend of the river and in the many adjacent counties in all directions, forestalling any serious expressions of vigilante behavior in the area.
Activists may point to reports of militia activity in the county, but the plain truth is that militia activity has been a physical non-factor in events— having an outsized effect on perceptions in some places, perhaps, but no real presence on the ground.
Lawmen in Hudspeth County would seem to have a more difficult row to hoe— with greater territory to cover, and much less apparent support— owing perhaps to their proximity to El Paso and local politics in that community and a perceived reluctance to participate in Operation Lone Star.
Bensman continues:
Sheena Rodriguez, a proponent of ending the mass migration crisis who spends much time on the border as president of Alliance for a Safe Texas, told me she won’t be surprised either. Something terrible is brewing in the Texas tea.
“I’ve heard that a lot — a lot,” Rodriguez said when I asked her if she’d been hearing frustrated Texans talk of murdering illegal border-crossers. “You get a lot of the comments, people making statements that ‘These are desolate areas and everyone’s got a back hoe and a lot of acreage.’ They will say, ‘People need to strap on guns and go down to the border.’ You know, what they’re trying to say, is that no one will ever know if they go on a killing spree.”
“I think we’re getting to the point where, because the state [of Texas] is limited in what they’re willing to do and the federal government is incentivizing this, that tensions are really high, and people are willing to fill a gap that they feel their state and government are unwilling to do,” Rodriguez said.
Some of the extremist thinking seemed aimed at law enforcement officers who they see welcoming the immigrants in over the border, under orders from above to do so, she said.
“A lot of people on the, quote-unquote right are upset with law enforcement officials, where they’re calling them traitors as though they’re going to fill the gap and go Batman.”
Another advocate who speaks a lot publicly and spends a lot of time along the border also reported hearing Texas residents on the conservative side of the political spectrum speak of taking matters into their own hands with firearms, out of intense frustration that no one will stop the illegal border crossings. This person declined to be interviewed on the record but the stories sounded similar to what I and Rodriguez have picked up.
In my current capacity as a writer, researcher, and speaker about border security, I feel obliged to call out this apparent tilt toward extremist violence in Texas for condemnation and to challenge anyone else who discerns a willingness to murder illegal immigrants to report those intentions immediately to authorities here.
Anyone who favors rational, good-faith border security need not be reminded that violent vigilantism is not part of their movement. But I’ll remind all advocates of border security that they must not only condemn vigilante murder as an option the moment they hear it, but also help law enforcement separate them from the movement — just as mainstream Democrats should have condemned and rooted out Antifa rioters from their movement during nationwide 2020 riots, but never did.
—Reporter and Analyst Todd Bensman, The Center for Immigration Studies
For our part here at the Dispatch, we can’t say we’ve never heard what seem now to be some questionable expressions of frustration. Until now, we’ve been willing to dismiss it as tough-sounding but ultimately flaccid and harmless talk. The expressions of a few easily-ignored wanna-be tough guys. Less Navy Seal Team Six, and more Gravy Meal Team Flab, perhaps.
However, it is impossible for us to disagree with Bensman’s assertion that such expressions should be anathema, in the wake of what’s alleged to have happened in Hudspeth County. Are matters dire? Sure seem to be here. Are people frustrated? Absolutely. Should they be taken seriously? Unquestionably.
This is why we now return to what’s becoming a frequent refrain here at the Dispatch: For two years, Washington DC leadership and others have been telling Texans that everything is fine. The border is secure.
Everything is not fine. And the border is not secure in any recognizable sense to anyone that’s lived a lifetime here, or raised a family.
As we write these words late Thursday night, early Friday morning, it feels almost trite. Most of the rest of the world seems to be on fire with criticism of current events in Ukraine and Government statements that suggest Armageddon might be on the horizon.
What a surreal moment. What bonkers words they seem to be as we reread them.
Positivity is something we try and bring to the end of every newsletter lately— some times with more success than others. We imagine it as a cathartic passage from the night of dismay, to the sunny promises of an ultimately better tomorrow.
At this moment, we find ourselves reflecting on some very stoic advice once uttered by underappreciated Middle-American philosopher-comedian Drew Carey.
Once upon a time, appearing on a late night talk show, Carey was asked about a looming federal government crisis. It might’ve been a Bill Clinton “bimbo eruption,” to use Hillary Clinton’s vernacular. Or perhaps it was the Starr Report. Or perhaps it was a federal govt. shutdown over budget differences. We’ve slept a few nights since it occurred, and have since forgotten the exact genesis of the statement which we do remember. Carey turned to the show host, who’d asked if he had anything for the viewers at home, and gave a little shrug and said something to the effect of: “Eh— this doesn’t effect anyone. We’re all still going to have to get up in the morning and go to work. Sort out whatever the boss is upset about, feed the kids, run our errands. Relax.”
He may not have been 100-percent accurate about no one being affected— but he was ultimately correct. We did all have to still show up for work and take care of the rest of the business associated with our daily lives, no matter what else was going on in the world at large.
And so it is here, no matter what ultimately happens between the United States, Ukraine, and Russia. Set aside the woes that seem too big to grapple with. Focus instead upon those you can. You may find that the others have sorted themselves out without you.
It may also be that it’s too much to ask that someone take Drew Carey seriously.
Fair enough. How’s Epictetus grab you?
“There is only one way to happiness, and that is to cease worrying about things which are beyond the power of our will.”
—Epictetus AD 50 - 135 AD
Epictetus was an ancient Greek philosopher, influenced by Socrates and others. And the expression there is perhaps one of the seminal tenets of stoicism. Some seem to believe stoicism to be something of a façade of uncaring emotionlessness. But it would be much more accurate to describe it as a way of moderating one’s perceptions to better and more productively navigate and reliably mitigate the inevitable disappointments that life can deal us.
And so it is here. It’s the end of the week. Finish it up strong, no matter what’s in front of you, and the weekend will sort itself out— to your satisfaction, like as not. Love your parents, love your children, love each other. Love is one thing we all need plenty of, no matter what. Pretty sure Tom Jones said that. He had a lot to say about love. Click the link. He’s singing with Texas native Janis Joplin.
Have a great weekend, we may publish another newsletter before Monday’s arrival, depending on events.
Until then, we should probably mention our usual disclaimer— this newsletter is an independent work product, produced without the input of Kinney County officials, and predates our employment at the Kinney County Sheriff’s Office. We maintain it out of a sense of obligation to our readers, and strive to keep it divorced from Kinney County Government as best we may.
Any errors, opinions or other misdeeds contained within are entirely our own and should not be mistaken for any sort of expression by Kinney County officials— except where explicitly stated, as with the statement reprinted up above for the convenience of our readers.
Conundrum by any other name.... Yes, we have a crisis here and across the country. The vast majority of folks pass it off until they are personally affected often with devastating results. Some of us have thoughts about possible solutions that differ from political reality. Some years back when I was reasonably mobile, I spent time as a gate guard in the Cotulla and Dilley area. One day a non-rabid coyote showed up at my RV asking for water and direction North. I made him a sandwich and gave him a bottle of water and sat with him while he ate. We talked a while before he headed North. I called BP and they arrived to pursue. Similar encounters occurred on two other occasions.
People are not always deserving of contempt even as law breakers. I have no problem with self-defense and am always prepared for such an encounter. There will come a day when we have no choice in the matter. Until then, I suppose we can wring our hands and complain and continue to live as best we can.