State of Texas: ‘The river is hurting.’ Lawsuit claims buoy barrier damages Rio Grande

Aug 06, 2023

by: Ryan Chandler, Monica Madden, Will DuPree, Josh Hinkle, John Thomas, Cora Neas

Posted: Aug 5, 2023 / 06:00 PM CDT

Updated: Aug 5, 2023 / 04:38 PM CDT

AUSTIN (Nexstar) — Life on the river is not as it once was.

As Jessie Fuentes sets his kayak free in the Rio Grande, he’s struck by the abrupt entrapment of his favorite pastime — the river, once free-flowing and free for all to access, is now outfitted like the outer walls of a prison.

The banks are bogged in mud, and the Carrizo cane was uprooted for concertina wire. Spools of tiny spikes are strewn with torn T-shirts, perhaps the only thing their one-time owners had on their backs before they surrendered to state troopers.

Fuentes said it looked like Texas was fortifying for an army to invade.

“For me, it hurts,” he said. “It can be beautiful. It used to be beautiful on both sides. Until Governor Abbott implemented his Operation Lone Star.”

Nexstar received special access to join Fuentes on a kayaking excursion down the river, which is now closed to the public as the state ramps up border security efforts under Operation Lone Star. The goal: reach the buoy barriers. Governor Greg Abbott ordered a thousand feet of floating orange spheres into the middle of the river to deter and bottleneck migrants. Fuentes is now suing the state to remove them.

“This is about the river,” he said of the lawsuit. “I just can’t believe what they’re doing to this river.”

Fuentes’ concerns are both ecological and cultural. The buoys, he argues, disrupt the natural flow of the river, collect sediment and debris, and would lead to abnormal islands that will block water and harm the natural environment.

Even before the buoys, however, he says DPS caused the erosion of the riverbanks by uprooting plants and installing razor wire, transforming the once lush greenery lining the river into mud and dust.

“My suit is about the buoys, but it’s really about everything,” he said. “I want to return the river to its natural state.”

There is, indeed, a stark contrast between the Mexican and American banks of the river: Mexico is green, while the U.S. is brown. The Mexican side hosts fishermen and children playing in the water, while the U.S. side conceals troops and heavy weaponry behind dust and steel.

The buoys themselves cover just a small fraction of the river around Eagle Pass. They cover 1,000 feet — less than one-fifth of a mile. The stretch they cover is about 18 inches deep. There is no room for people to dive under them, but plenty of room to avoid them altogether. At least two dozen migrants did so during the three hours Fuentes was on the river.

The Texas Department of Public Safety (DPS) said that while they do not yet know if the buoys are reducing migrant crossings, they target the busiest section for crossers and direct them to other points of entry. This helps DPS free up manpower in other areas.

“It’s a very effective tool,” DPS spokesman Lt. Chris Olivarez said. “We have to try to do as much as we can as trying to discourage illegal border crossings. And I think that’s the main goal for what we want to do… because families and children are crossing that river. It’s very dangerous, it’s not safe, it’s not humane. And also, it’s illegal.”

Olivarez said the state may add more buoys after monitoring the effectiveness of this initial stretch.

Fuentes hopes his litigation will prevent that.

“We live and die by how this river flows. If people don’t take care of it, everybody’s gonna suffer.”

The state also faces legal action from the federal government seeking to remove the buoys. The lawsuit claims the barrier violates the federal Rivers and Harbors Act.

When asked about the lawsuit at a news conference Wednesday, Abbott said the state will fight to keep the buoys in place.

“I believe that the constitutional right of the state of Texas to secure our border and defend our sovereignty supersedes any statute,” Abbott said. He added that the state is prepared for a long legal fight.

“I cannot predict what may happen at a trial court. What I can tell you for certainty is that Texas is going to take this case all the way to the United States Supreme Court to defend the rights guaranteed to us in the United States Constitution,” Abbott vowed.

An Austin-based drag performer added her name to a lawsuit filed Thursday aimed at blocking a Texas law that the plaintiffs argue would amount to a “drag ban” in the state.

Brigitte Bandit, who went viral earlier this year for testifying against the legislation while wearing a pink wig and dress, is among the plaintiffs now suing the interim Texas attorney general and other officials over Senate Bill 12 (SB12), which is set to go into effect on Sept. 1. The other groups that filed the lawsuit are the ACLU of Texas, two community Pride organizations and a couple of drag performance companies, including Extragrams based in Austin.

According to a news release announcing the lawsuit, the ACLU of Texas called the law “unconstitutional,” arguing it violates their rights protected by the First and Fourteenth Amendments. It also contends the law “threatens the livelihood and free expression of many Texans, including drag performers.”

Brian Klosterboer, an attorney with the ACLU of Texas, told KXAN the way the law is written could open up legal consequences for more than just drag performers.

“This law is incredibly discriminatory. It’s yet another attack on LGBTQIA+ Texans by the legislature this year,” said Klosterboer during an interview Thursday. “It violates the First Amendment because it clearly and discriminatorily targets drag artistry and performance, but it’s also so incredibly broad and vague that it targets entire genres of performing arts that could be considered sexual by someone in any way. So it could impact Broadway musicals. It could impact karaoke nights at restaurants. It could really impact any kinds of performance or visual presentation.”

The defendants listed in the lawsuit include interim Attorney General Angela Colmenero, whom Abbott appointed last month to lead the office while Ken Paxton is suspended awaiting the outcome of the Senate impeachment trial. Travis County Attorney Delia Garza is also being sued, along with the Bexar County district attorney, the Taylor County district attorney, The Woodlands Township, Montgomery County and the Montgomery County district attorney.

Garza said in a statement she appreciates what the ACLU is trying to do to “bring some clarity to a law that has constitutional concerns and will be difficult to enforce.”

“I continue to hope that in the name of true public safety, our state leaders will one day focus on actual public safety threats, like gun violence, instead of legislation like SB12 which will have little to no effect on the day to day operations of a community and its public safety needs,” Garza wrote.

Abbott signed SB 12 on June 18 after mostly Republican lawmakers pushed the legislation through both chambers during the regular legislative session. However, the bill received significant pushback from advocates for the LGBTQ+ community and others over their concerns about it possibly criminalizing drag performances and venues that host shows in the state.

Before state lawmakers ultimately approved the legislation, they removed direct mentions of drag performances or gender non-conformity from the language. The bill initially filed by Sen. Bryan Hughes, R-Mineola, defined a “sexually oriented performance” to include “a male performer exhibiting as a female, or a female performer exhibiting as a male, who uses clothing, makeup, or other similar physical markers and who sings, lip syncs, dances, or otherwise performs before an audience.” However, that’s no longer in the final version adopted.

Hughes shared his reaction to news of the lawsuit in a statement released Thursday afternoon.

“Surely we can agree that children should be protected from sexually explicit performances,” Hughes said. “Senate Bill 12 provides that protection, and I am confident that this common sense law will be upheld.”

A “sexually oriented performance” is defined more broadly in the law now to be “the exhibition or representation, actual or simulated, of sexual acts, including vaginal sex, anal sex, and masturbation;” “the exhibition or representation, actual or simulated, of male or female genitals in a lewd state, including a state of sexual stimulation or arousal;” “the exhibition of a device designed and marketed as useful primarily for the sexual stimulation of male or female genitals;” “actual contact or simulated contact occurring between one person and the buttocks, breast, or any part of the genitals of another person;” and “the exhibition of sexual gesticulationsusing accessories or prosthetics that exaggerate male or female sexual characteristics.”

A business owner who hosts such a performance in front of someone younger than 18 could face a fine up to $10,000, while a performer engaged in a sexually oriented performance “on public property at a time, in a place, and in a manner that could reasonably be expected to be viewed by a child” could get charged with a misdemeanor. Additionally, a city or a county “may not authorize a sexually oriented performance,” according to the law.

After eight years of delays and a change in venue, suspended Attorney General Paxton appeared in a Harris County court Thursday morning in a securities fraud case against him.

Paxton faces felony charges and is accused of defrauding investors in a tech startup after being indicted in 2015. The suspended attorney general also faces an upcoming impeachment trial next month in the Texas Senate for a slew of misconduct allegations related to abuse of office.

“It’s a good day for Texas because it’s on the road to healing. It’s on the road to justice. Finally, something’s going to be done one way or another,” prosecutor Kent Schaffer said.

The pretrial hearing lasted just nine minutes. Thursday’s developments were simple procedural matters to determine the logistics of a coming trial, yet lawyers on each side stressed the significance of reaching this moment.

“I think one of the game changers today is being in front of a judge who understands the law, who is dedicated to ruling on motions,” prosecutor Brian Wice said. “With all due respect, for the two plus, three plus years this case was in another court, that didn’t happen because the judge was either unable or unwilling.”

Paxton’s defense attorney Dan Cogdell said the eventual outcome of this trial will be largely influenced by the outcome of Paxton’s separate impeachment trial set to begin on Sep. 5.

“Logically, if Ken prevails [in the impeachment trial], we’ll go forward. If Ken loses, that’s a killshot to his political career, so it opens the door for a resolution and it’s not open right now.” Cogdell said.

Judge Andrea Beall set a setting date for Oct. 6, when she might rule on pre-trial motions and could set a trial date for Paxton, if necessary. Although, all parties involved in the case acknowledged their next steps toward resolving the case might vary depending on if Paxton is removed from office as a result of the Senate impeachment trial.

Cogdell said that “resolution” could be a settlement, plea bargain, or dismissal.

Last month in a 6-3 ruling, the Texas Court of Criminal Appeals decided the case should remain in Houston, settling a key issue in the case as Paxton faces an impeachment trial in the Texas Senate next month. His case originally was in Collin County, where Paxton lives, but the trial judge there had lost jurisdiction over the case.

Shortly after the Republican was first elected to the Office of Attorney General, a Collin County grand jury indicted Paxton in 2015 on two counts of securities fraud — a first-degree felony with a punishment of up to 99 years in prison — and one count of failing to register with state securities regulators — a third-degree felony with a maximum 10 years in prison.

The charges stem from 2011 when Paxton allegedly sought out investors in Servergy Inc. — a tech company based in his hometown of McKinney — without saying he was being paid by Servergy to promote its stock.

At the end of May, Paxton was suspended after the Texas House voted 121-23 to impeach him on allegations related to his securities fraud case, as well as other accusations of misconduct throughout his tenure in the office. Paxton denied wrongdoing and decried the efforts as a political “witch hunt.”

Paxton’s security fraud case was originally set in Collin County, but in 2017 prosecutors began a fight to change the venue. They argued that finding potential impartial jurors and getting a fair trial would not be possible in the area that Paxton had represented politically for 12 years. Before becoming attorney general, he was a state representative for 10 years and a state senator for two years.

Before the Texas Criminal Court of Appeals ultimately ruled in June that the case would remain in Houston, defense and prosecutors went back and forth fighting over the venue for years. Paxton’s team successfully got the case back to Collin County in 2020 after arguing the judge who had sent the case to Harris County no longer had jurisdiction in Paxton’s case. Prosecutors appealed and ultimately got the case back to Harris County.

The battle over which county his case would be heard in was only one factor of several that caused years of delays. Issues with six-figure payments for the prosecutors in the case lengthened the time of the appeal, and additionally, defense lawyers for Paxton took issue with the grand jury procedure in his indictment and had asked to get the charges dismissed altogether.

Benjamin Gergen, an Austin-based criminal defense attorney and partner with Gergen Hale & Campbell, said Thursday’s court setting was a big step in ensuring the court moves forward with the case.

“For the first time, Ken Paxton has been ordered to appear before the Democratic Harris County District Judge,” he said. “This sends a message that this 8-year-old case may pick up speed quickly because the court wouldn’t force a defendant to attend on a case of this age without something more substantive than a quick check-in and reset to a later date.”

This securities fraud criminal case is separate from Paxton’s impeachment trial, which begins on Sept. 5 at the Texas Capitol. Per the Texas Constitution, senators will act as a jury and Lt. Governor Dan Patrick will preside over the trial.

No aspect of the trial will include criminal charges; senators’ vote will determine whether or not Paxton must be permanently removed from office. The allegations against Paxton include bribery, abuse of office, and obstruction. The Republican has faced controversies and criminal charges hanging over his tenure.

Paxton is asking the Senate to dismiss the articles of impeachment he faces in his upcoming trial, arguing the bulk of allegations happened before his most recent election to a third term.

In two related motions filed to the Senate on Monday, Paxton’s attorneys argued that impeaching him would usurp the will of voters — considering the majority of allegations were already public and Texans still reelected the attorney general. Paxton’s defense team cited state law known as “prior-term doctrine,” arguing Texas prevents the removal of a public official for alleged conduct that happened prior to their most recent election.

Paxton’s attorneys also filed motions to quash evidence that they think should be inadmissible.

“They’re really throwing everything they can at the wall to try to get these things thrown out before September 5,” said Lauren McGaughy, an investigative reporter for the Dallas Morning News who is covering developments in the case.

McGaughy’s reporting uncovered text messages from lawmakers unhappy after the proposal to have lawmakers approve $3.3 million to settle a lawsuit filed against Paxton by a group of whistleblowers. House Speaker Dade Phelan said the request sparked the investigation that led to Paxton’s impeachment.

“We asked for text message between one of Paxton’s senior advisors both at the agency and his campaign and Jeff Leach, who is a longtime Collin County lawmaker and friend of Paxton,” McGaughy explained.

“The texts shows us that lawmakers were upset about this ask,” McGaughy said.

Paxton’s attorneys previously asked for several Democrats to be removed from the impeachment jury. McGaughy’s reporting revealed a potential conflict for a Republican senator as well.

Under the Senate rules, Paxton’s wife, State Senator Angela Paxton, was ordered to recuse herself. But so far there does not appear to be a serious effort to remove anyone else from voting.

“Really, almost all of these senators have a link good or bad to Paxton. They’ve campaigned for him, they’ve campaigned against him,” McGaughy said.

After years of unsuccessful attempts, Texas will soon no longer collect sales tax on essential baby products like diapers and wipes, as well as menstrual products starting on Sept. 1.

Longtime advocates like the Austin Diaper Bank say it will make certain healthcare necessities more accessible for low-income Texans. The nonprofit provides nearly 200,000 diapers per month to families, helping around 35,000 families a year. Executive Director Holly McDaniel expressed said she was “thrilled” when the bill finally passed.

“For families who are living in poverty or have low incomes, diapers can be really expensive. And so a lot of times they’ll reuse diapers, they’ll use other things in place of a diaper. And we don’t want families to do that,” McDaniel said.

Rep. Donna Howard, D-Austin, had introduced this bill in four consecutive legislative sessions. She attributes the nearly $33 billion budget surplus to a main factor in getting it across the finish line this year.

“I will say that I think it also came on the heels of the previous legislative session, and the Supreme Court ruling on Roe v. Wade, where there was a sense that the Texas Legislature was not taking care of women and not providing them access to health care,” she said. “So there was more of an effort this time I think on the part of leadership to show that indeed, they did want to support women. They did want to support families.”

At the beginning of the session, Speaker of the House Dade Phelan made Howard’s bill one of his top priorities. The legislation that ultimately got signed into law was a Senate version of Howard’s bill sponsored by Sen. Joan Huffman, R-Houston.

Although the savings resulting from the tax elimination might seem small, Howard estimates it will add up over time and make a noticeable impact for families living paycheck to paycheck.

“What we really need to be working toward now though, is how do we make sure we have more of these products — both diapers and period products — available to those who need them,” she said.

It also eliminates the sales tax for adult diapers.

Estimates from the Legislative Budget Board show the state would lose nearly $105 million in revenue in the next fiscal year from ending the tax. That’s a small fraction of the nearly $43 billion the state collected in sales taxes last fiscal year.

The law will go into effect on Sept. 1.

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