Facing sex discrimination lawsuits for targeting men under the state鈥檚 border security crackdown, Texas has begun putting migrant women in state prisons, too.
Since last week, women arrested under Gov. Greg Abbott鈥檚 yearslong Operation Lone Star have been sent to a state prison facility in Edinburg, prison and state police officials confirmed. By Tuesday, 25 women, most accused only of trespassing, were being held at the Lopez State Jail, which typically houses men convicted of low-level crimes.
Texas Department of Criminal Justice spokesperson Amanda Hernandez said officials had cleared out one building in the facility to house up to 200 females.
It鈥檚 been two years since in response to record-high levels of Texas-Mexico border crossings. Texas can鈥檛 enforce federal immigration laws, but Abbott skirted the restriction by ordering state police to jail people suspected of illegally crossing the border on misdemeanor trespassing charges.
The state , which house convicted felons, to instead detain these misdemeanor defendants, not yet convicted of any crime. Soon, thousands of migrants had been swept into Texas鈥� new criminal justice system specifically erected for them.
But troopers were instructed to arrest only single men they encountered, turning women and families over to the U.S. Border Patrol. Then the lawsuits came.
Under both the U.S. and Texas constitutions, equal protection laws require governments to treat people alike, regardless of race, national origin or sex.
Last September, a state district judge against six migrant men in Zapata County, siding with defense attorneys who argued the state was unconstitutionally discriminating against men by not arresting women or children. A flurry of other legal challenges followed, with varying results.
In one case, a judge decided a man鈥檚 May 2022 arrest in Maverick County wasn鈥檛 discriminatory because the women in his group, who were referred to immigration authorities, could be charged later, even though troopers had not collected any identifying information. overturned that ruling last month, finding the man鈥檚 arrest 鈥渆xpressly discriminated on the basis of sex.鈥�
As the legal filings began mounting, the Texas Department of Public Safety changed course, telling troopers in December to begin arresting single, female migrants, a department spokesperson said last week. Troopers are still told not to arrest minors, adults over 65 or families.
Defense lawyers say the change appears to be a direct response to sex discrimination lawsuits.
鈥淪ince we started making equal protection challenges, we鈥檝e seen a few token arrests of females here and there,鈥� said Kristin Etter, Texas RioGrande Legal Aid鈥檚 lead attorney for Operation Lone Star cases. 鈥淏ut the practice of releasing females to Border Patrol for processing is still widespread.鈥�
As of Saturday, DPS said more than 105 women have been arrested for allegedly trespassing in five border counties. Women accused of more serious crimes, like smuggling, have been arrested under Operation Lone Star since its inception.
The low number of trespassing arrests may in part be because the state had set up booking centers and two prisons to process and hold men accused of immigration-related crimes, while women were being held at local county jails with little space.
鈥淭he significant influx of criminal activity along the border regions strained the ability of impacted counties to incarcerate those charged with state offenses,鈥� Hernandez, with TDCJ, said last week.
Hernandez said the Lopez facility was brought into the Operation Lone Star fold to help incarcerate women, mostly those arrested for trespassing.
Since it is acting as an alternative to a county jail, not a state prison, there are different, often better, minimum standards of care required. Most notably, this means the building housing female defendants must be air conditioned, something .
Court challenges are continuing, however. Defense attorneys have filed repeated challenges to criminal charges based on the discrimination claims, and appeals are pending. The practice of arresting women is still far less common than arresting men, defense attorneys said.
But even when discrimination based on sex is obvious, the appeals court said in June, it doesn鈥檛 necessarily mean the arrest was unconstitutional. Instead, the 4th Court of Appeals told the Maverick County court to weigh whether the discrimination is justified based on a 鈥渘arrowly tailored 鈥� compelling governmental interest.鈥�
Prosecutors had argued that discrimination against migrant men is justified because of the 鈥渆mergency situation on Texas鈥� southern border.鈥� The court of appeal鈥檚 ruling is being appealed to Texas鈥� highest criminal court, the Court of Criminal Appeals.