"This disgraceful condition must end," said Texas Gov. Greg Abbott in June 2018 as then-President Donald Trump's "zero tolerance" policy inspired widespread backlash. The directive held that every illegal border crossing—a misdemeanor first offense—be prosecuted, which saw thousands of children separated from their parents. Though former President Barack Obama also prosecuted parents when they were suspected of more serious crimes, it had not been customary to upend families over a misdemeanor. The Republican leader of the Lone Star State called it "tragic and heart-rending."
Fast forward to 2021, and the political optics are different. President Joe Biden is in power. He has been roundly criticized by the GOP for what the party says is an overly liberal immigration system, though he has quietly preserved many of Trump's restrictionist policies.
Abbott's solution: He has directed the Texas Department of Criminal Justice (TDCJ) to clear out the Dolph Briscoe Unit, a state prison in Dilley, Texas, so that law enforcement can arrest and detain some undocumented migrants there, according to The Marshall Project's Keri Blakinger. Adults arrested and facing such charges will not be able to keep their families intact.
The move is a part of Operation Lone Star, an Abbott initiative that saw "air, ground, marine, and tactical border security assets" deployed to the U.S.-Mexico border "to deny Mexican Cartels and other smugglers the ability to move drugs and people into Texas." A disaster declaration signed by Abbott in May upped the ante, giving the Department of Public Safety increased latitude to enforce various offenses, like trespassing. It also directed the state to revoke licenses for any child care service caught looking after "unlawful immigrant" children.
"The state of Texas continues to deal with a significant number of individuals illegally crossing the border," said Jeremy Desel, a TDCJ spokesperson, in a statement. "To address the ongoing crisis, Governor Abbott is directing state resources to arrest and confine those individuals crossing the border unlawfully and who have committed a state or federal crime."
Though TDCJ is yet to confirm exactly which crimes they'll hone in on, State Rep. Gene Wu (D–Houston) tells Blakinger that at least a portion will be "low-level" offenses, such as criminal trespassing, which is a misdemeanor.
"While President Biden continues to ignore the crisis on our southern border and his duties to our country, Texas is stepping up and upholding the rule of law," said Renae Eze, Abbott's press secretary, in a statement.
Yet it was not immediately clear if the plan itself is legal, as migrant arrestees will be sent to prison prior to any trial or conviction.
"We're putting migrants with low-level offenses in here," Kate Huddleston, an attorney with the American Civil Liberties Union, told Austin's local NBC affiliate. "But is it fair to treat a migrant with a low-level offense, is it fair to say let's treat them like a fully-convicted prisoner?"