ICE Holds, Bail Bonds, and Getting Freed from Jail in Texas

Arrests are not the same as being charged with a crime.  For instance, a police officer (or sheriff’s deputy or state trooper) can pull someone over here in Texas and place them under arrest.  Here is when the Miranda rights must be given to the accused, which include explaining that the person has a right to keep silent and the right to have legal counsel.

After you are arrested, there will be a passage of time before you are officially charged with committing a specific crime as defined by law.  Sometimes, you are released after arrest without ever being charged.

Having your freedom taken away the government in an arrest can be devastating emotionally as well as financially and physically.  Reputations can be ruined; relationships can be harmed; and the stress can take its toll on someone’s health.

This is true for anyone facing arrest here in Texas.  However, things get much more complicated when that individual is not a citizen of the United States, i.e., an “alien” as defined by statute.

More and more in the State of Texas, the federal government enters into the picture during the arrest process.  Specifically, immigration agents are focusing upon undocumented immigrants and non-citizens for detention and deportation.

Procedurally, they usually show up via an ICE Hold.  Here, the person who has been arrested also faces a federal fight against being deported and removed from the United States.  It is a terrifically stressful time for this person and his loved ones.

What is an ICE Hold?

An “ICE Hold” overlaps state and federal jurisdictions.  It is based upon a written demand from the federal government to the State of Texas, asking that state law enforcement authorities keep an individual in jail until the federal agents can take him or her into custody.  When the Immigration and Customs Enforcement Agency (“ICE”) makes this request, the person is held by Texas authorities in what is called an “ICE Hold.”  For more on ICE Holds in Texas, read my earlier discussion in “Immigration Holds in North Texas: Indefinite Stays and Dallas County Sheriff.”

The ICE Hold starts from the time that the person otherwise would be released from jail.  Perhaps it’s because they made bail.  Maybe their charges were dropped.  Some may even have been acquitted.

Whatever the freedom they would have under Texas law, that freedom is blocked by the ICE Hold and they are kept in custody by the state authorities at the federal government’s request.

Detainers: Homeland Security Justification

ICE doesn’t use this lingo for holds.  The Immigration and Customs Enforcement agents call them “Detainers,”  and they are used for “… aliens arrested on criminal charges for whom ICE possesses probable cause to believe that they are removable from the United States.”

The “Detainer” requests that the Texas law enforcement agencies (LEAs) notify ICE quickly (“ideally at least 48 hours”) before the man or woman is to be released from state criminal custody, and to then “briefly maintain custody of the alien for up to 48 hours” so to allow the federal agents can take custody of the individual for removal purposes (deportation).

Here’s the federal government’s explanation for this.  From ICE:

These requests are intended to allow a reasonable amount of time for ICE to respond and take custody of the alien. When LEAs fail to honor immigration detainers or requests for notification and release removable aliens, it undermines ICE’s ability to protect public safety and carry out its mission.

The rationale comes from ICE as an agency within the federal government’s Department of Homeland Security.  These “detainers” are explained as being necessary “… to help ensure that aliens who may pose a threat to our communities are not released onto the streets to potentially reoffend and harm individuals living within our communities.”

The Ticking Clock without a Warrant

Legally, the state authorities are not allowed to hold anyone for ICE any longer than 48 hours (excluding Saturdays, Sundays, and legal holidays) from the time that they would otherwise be released.  This does not mean that people are getting released as required.

The reality is that ICE is using Detainers to imprison people without due process.  People are being kept behind bars on ICE Holds without any criminal charges pending against them.  There are cases where people have been kept in jail on an immigration hold without the authorities having any evidence of probable cause that the person has committed any crime at all.

No judicial warrant is required.  Under the latest ICE Policy (April 2017), ICE need only attach its Form I-200 or Form I-205 to its detainer request (ICE Form I-247A).  These are forms signed by ICE agents themselves, without any judge reviewing the request (like would take place with a standard warrant).  Convenient, isn’t it?

Across the country, people are challenging these ICE Detainers in civil suits, seeking damages from state and local authorities for keeping people behind bars on an ICE Hold.  See, e.g., the American Civil Liberties Union (ACLU) list of 2018 civil suits awarding damages for illegal detention based upon ICE Holds.

First Steps after an ICE Hold

From a practical standpoint, the undocumented immigrant or non-citizen who has been arrested and thereafter become a target of federal immigration authorities first needs to determine how best to deal with the state criminal matter.  Civil damages can be sought later.  The first priority must be fighting for freedom, and in these instances this is best done by a tag-team of a Texas criminal defense lawyer and an aggressive federal immigration defense attorney.  Here’s why.

Criminal Defense Working With Immigration Defense

From my experience, the criminal defense strategy in these cases works best with the joined efforts of a federal immigration defense lawyer who is adept in litigating in the immigration courts.  This is because two battlegrounds are involved:  (1) the state criminal case must be defended, and (2) the federal immigration case must be simultaneously advocated.

Decision:  File a Bond in the State Criminal Proceeding?

After the non-citizen is arrested by state or local law enforcement, there will be question of getting that person free from jail.  The first question asked by his loved ones is often “how can we get a bond for his release?”

Filing a state bond in these situations comes with a special risk:  if the person is released on bond in the state case, there is the likelihood that he will be picked up by the federal agents for deportation, enter into immigration custody, and get no credit for time served in federal immigration custody.

Have Charges Been Filed?

Accordingly, if the criminal case has been filed and charges are on the record, it is usually the better defense strategy NOT to seek a bond.

Here, the criminal defense strategy will be to push for the case to be tried as soon as possible.  The prosecutor will be pressured to try their case, and they’ve got a lot on their plate.  They may not be ready on the day of trial and be forced to dismiss the case.  They may be facing trial with a weak case and more willing to enter into a plea bargain.

Meanwhile, the immigration lawyer will be monitoring things on the federal front.  He or she will work with the non-citizen to help explain what happens with the federal immigration issues after a plea deal or a criminal trial.

No Case Filed Yet?

The defense strategy is much different if the case has not been filed yet.  Here, the criminal defense lawyer may have the opportunity to file a Motion to Release pursuant to Texas Code of Criminal Procedure 17.151.

If this motion is granted, the non-citizen is released from state custody.  At this juncture, the immigration lawyer moves forward in the federal battlefield with things like getting an “immigration bond” allowing the non-documented immigrant to be released from federal authorities and their ICE Hold.

The immigration attorney can provide the federal judge with the state judge’s order granting the Motion to Release under TCCP 17.151.  This tells the federal immigration judge that the state case hasn’t been filed, and hopefully this will result in the immigration judge releasing the person from federal custody.

The 17.151 Motion: Texas Statute Allowing Release from Jail Because of Prosecutorial Delay

This statute will not work in every situation, but it will apply in a great many cases where the non-documented immigrant is setting in a Texas jail.  The provisions of Article 17.151 of the Texas Code of Criminal Procedure speak to releasing someone from jail because of the government’s delay in getting him or her to trial.

The statute provides as follows:

A defendant who is detained in jail pending trial of an accusation against him must be released either on personal bond or by reducing the amount of bail required, if the state is not ready for trial of the criminal action for which he is being detained within:

(1) 90 days from the commencement of his detention if he is accused of a felony;

(2) 30 days from the commencement of his detention if he is accused of a misdemeanor punishable by a sentence of imprisonment in jail for more than 180 days;

(3) 15 days from the commencement of his detention if he is accused of a misdemeanor punishable by a sentence of imprisonment for 180 days or less; or

(4) five days from the commencement of his detention if he is accused of a misdemeanor punishable by a fine only. 

Sec. 2.  The provisions of this article do not apply to a defendant who is:

(1)  serving a sentence of imprisonment for another offense while the defendant is serving that sentence;

(2)  being detained pending trial of another accusation against the defendant as to which the applicable period has not yet elapsed;

(3)  incompetent to stand trial, during the period of the defendant’s incompetence; or

(4)  being detained for a violation of the conditions of a previous release related to the safety of a victim of the alleged offense or to the safety of the community under this article.

– Article 17.151 of the Texas Code of Criminal Procedure.

It is possible for a Texas criminal defense lawyer to file a Motion to Release someone held in a local or state jail based upon this law and get their immediate freedom, even if an ICE Hold is involved. The federal government’s involvement does not block this release request.

Motion to Release Pursuant to Texas Code of Criminal Procedure 17.151

Key here is the demonstration to the judge by the defense lawyer that the prosecution has failed to bring charges against the defendant.

An example of this motion (sample form) can be found online, provided by the Texas Criminal Defense Lawyers’ Association.

1.  The 90 Day Deadline for Prosecution for Felonies

The law is clear.  Any defendant detained in a Texas jail has to be released if the prosecution is not ready for trial within 90 days of the defendant being charged with a felony.  He or she must be released on personal bond, or by a reduction in the bail requirement that is sufficient to allow him or her to make bail.

The time frames are even shorter when misdemeanors are involved.  Freedom must be given as soon as 5 (five) days after charges have been filed.

2. No Indictment

Things are even clearer for the defendant if there has been no indictment.  Under Texas law, if there has been no indictment, the prosecutor cannot announce ready for trial.  Pate v. State, 592 S.W.2d 620 (Tex. Crim. App. 1980).

3.  Calculation of the Incarceration Period

The statute requires detention for those facing felony charges to be a minimum of 90 days before the law can be applied.  The defense must establish this time period under TCCP Art. 17.151.

Here, Saturdays, Sundays, and legal holidays ARE counted in the time period.  Once 90 days have passed, the motion can be filed with the court.

At this juncture, the law provides the judge with two choices:  (1) release the defendant on his personal bond or (2) reduce the bail to an amount that the record reflects an accused can make in order to effectuate release. Rowe v. State, 853 S.W.2d 581, 582 & n.1 (Tex. Crim. App. 1993).

Reversible Error

It is considered an abuse of discretion and reversible error for the judge not to set a bail here that is in an amount which the record establishes the defendant can make.   Ex parte Avila, 201 S.W.3d 824, 826 (Tex. App.-Waco 2006, no pet.).

The appellate court will review the trial judge’s decision on an abuse of discretion standard, viewing the evidence in the light most favorable to the ruling. Ex parte Craft, 301 S.W.3d 447, 448-49 (Tex. App.-Fort Worth 2009, no pet.); see Jones v. State, 803 S.W.2d 712, 719 (Tex. Crim. App. 1991).

What if the defendant is indigent?

If the defendant is not able to post bond because he has no assets to use to make bond, then even a nominal bond amount (e.g., $1000) is error.  See, e.g., Ex Parte Landrum, No. 07-18-00301-CR (Tex. App. Oct. 19, 2018).

If the defendant is indigent, then the judge must release him or her on a personal recognizance bond. Ex parte McNeil, 772 S.W.2d at 490 (“Where a detainee has no funds available to her and the State does not indict her within 90 days, she must be released on a personal recognizance bond.”)

Mandatory Release under TCCP Article 17.151

Of extreme importance here, from a defense perspective is that application of TCCP Article 17.151 is mandatory. Pharris v. State, 196 S.W.3d 369, 373 (Tex. App.-Houston [1st Dist.] 2006, no pet.) (citing Ex parte Rowe, 853 S.W.2d 581, 582 & n.1 (Tex. Crim. App. 1993) (en banc)).  There is no wiggle room for the state to argue once the time deadlines have been met.

The reasoning is clear.  People are considered innocent until proven guilty.  It’s wrong to keep them behind bars when the prosecution is not acting expediently.  Explains the Texas Court of Criminal Appeals:

“This [a]rticle preserves the presumption of innocence by ensuring that `an accused as yet untried and unreleased on bond will not suffer the incidental punitive effect of incarceration during any further delay attendant to prosecutorial exigency.” Ex parte Jones, 803 S.W.2d 712, 716 (Tex. Crim. App. 1991).

Criminal Defense and Immigration Defense for Texas Arrests with ICE Holds

From a Texas criminal defense lawyer’s perspective, clients who are non-citizens facing ICE Holds need to have concurrent representation of two aggressive advocates: one fighting for them in the state criminal courts and the other advocating on their behalf in the federal immigration court system.

I’ve discussed this in more detail in the following video:

My point is simple:  in my experience, these situations need both a zealous criminal defense lawyer and an equally zealous immigration lawyer who is experienced in federal trial litigation.  It’s a team effort that can work to minimize the non-citizen’s time behind bars, or even get them their freedom with a full release from both jurisdictions.

To learn more about federal and state bail bonds, read:

• How To Get Out of Jail on a Federal Charge: Federal Arrest, Bail, and PreTrial Detention
• Top 7 Texas Bail Bonds Traps: Don’t Get Caught In One Of Them!

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For more information, check out our web resources, read Michael Lowe’s Case Results, and read his in-depth article,” Pre-Arrest Criminal Investigations.”