Breckenridge Texan

A video posted on the website YouTube in April has shined a spotlight on Stephens County and the alleged treatment of a Mexican immigrant who was arrested and detained here for about three months.

The video and a subsequent update video were posted by Metroplex-area attorney Arvin Saenz. Throughout the first video, Saenz makes allegations against Stephens County officials regarding the case of a client he is representing in an immigration case. The second video clarifies some of the allegations and gives an update on the client.

Nestor Rodriguez

Although Saenz has declined to identify his client by name, citing attorney-client confidentiality, Breckenridge and Stephens County law enforcement and elected officials say that, in their opinion, the video can only refer to Nestor Jesus Hernandez Rodriguez, who was arrested on Jan. 7, 2018. According to the Stephens County Justice of the Peace and Sheriff, Rodriguez is the only person in the local jail to be married in the jail in the past year and a half or more. Additionally, throughout the interview, Saenz answered questions and discussed the situation after the Breckenridge Texan identified Rodriguez as the person we were referring to.

After the original video was shared with Breckenridge Texan Managing Editor Tony Pilkington by several elected officials and private citizens, we began looking into the situation and the allegations. We have conducted numerous and extensive interviews with several of the people involved in the case, watched videos, read official documents and double-checked for additional documentation. Still, there are differences of opinions in this case. In the following paragraphs, we have laid out the allegations made by Saenz, his stated reasons for making them and the responses of the local law enforcement and justice system.

Background
According to police and court documents, the case started with a 9-1-1 call regarding a disturbance at a residence on North Parks Street in Breckenridge around 4:30 a.m. on Sunday, Jan. 7, 2018. Two Breckenridge police officers responded and subsequently arrested Nestor J. Hernandez Rodriguez, age 30, on two charges — criminal trespass and burglary of a habitation. The incident involved an alleged confrontation between Rodriguez and his girlfriend, also referred to as his common-law wife, who reportedly had a criminal trespass warning on file against him.

Rodriguez was booked into the Stephens County Jail that morning, where he stayed until April 6, when he was transferred to a U.S. Immigration and Customs Enforcement facility.

According to the ICE Regional Director of Communications for North Texas and Oklahoma, Carl Rusnok, Rodriguez was released on an immigration bond in late April and has a late-June hearing pending for his case regarding an alleged over-stay on his visa.

Saenz said he is not his client’s attorney on the criminal trespass and burglary charges and is only representing the client in the immigration case.

Note: Due to cultural differences between Mexico and the United States, there has been some confusion about Rodriguez’s last name. Official documents list his last name as “Rodriguez-Hernandez,” “Hernandez-Rodriguez” and “Rodriguez.” The Breckenridge Texan has chosen to refer to him, on second and subsequent references, as Rodriguez, the name he signed on his marriage license application.

The Videos
On April 4, 2018, Saenz posted a video titled “Stephens county (TX) sheriff refuses immigrant to get married – DUE PROCESS VIOLATION” on YouTube, alleging several injustices against his client by officials in Breckenridge and Stephens County.

During the Breckenridge Texan’s phone interview with Saenz on Thursday, May 31, the original video, which had about 800 views by that time, was removed from YouTube. Later that day, the original video was back on YouTube, along with a follow-up video. However, by Sunday afternoon, June 3, the original video was gone, again, and only the second video remained online.

In the second video, titled “UPDATE regarding Stephen’s county detention of my client,” Saenz confirms that his client was released from Stephens County and transferred to the U.S. Immigration and Customs Enforcement. He also acknowledges that his client was allowed to get married in the Stephens County Jail and that a bond hearing had been held.

Because the videos and the allegations made in the videos have been of interest to many people in Breckenridge, we will address each allegation made in the videos and detail the information we have uncovered in our research. Below, each allegation is listed, along with the responses we gathered.

Allegation: No Charges Filed
One of Saenz’s main complaints is that his client has never had charges filed against him related to the January arrest.

 Although Rodriguez was arrested and held on “charges of” criminal trespass and burglary of a habitation, no formal charges have been filed, as of Monday, June 4, by the Stephens County Attorney or the District Attorney for the 90^th Judicial District.

Following his arrest, Rodriguez was detained in the Stephens County Jail for 90 days, the maximum time a person is allowed to be held without felony charges being filed. At the end of the 90 days, he was officially released on personal recognizance, but because ICE had placed a hold on him, he was transported to an ICE facility, according to jail records.

Stephens County Attorney Gary Trammel said that Rodriguez had been facing charges of violating a criminal trespass order that his girlfriend had previously filed against him. However, after the incident on Jan. 7, she went to Trammel and filled out an affidavit of non-prosecution, asking him to drop the official charges against Rodriguez for criminal trespass, and Trammel complied with her request.

Trammel said last week that the felony charge of burglary had been referred to District Attorney Dee Peavy. However, on Monday, June 4, Peavy said she was referring the case back to Trammel and suggesting that he consider other charges, such as assault-family violence. Despite the fact that no charges have been filed against Rodriguez in the January incident, the felony charge of burglary of a habitation has a five-year statute of limitations and misdemeanors have a two-year statute of limitations, so charges could still be filed in the future.

Allegation: No Bond Hearing
In the first video, Saenz alleges that his client was not given a bond hearing and that he did not have an opportunity to pay bail. In the second video, he confirms that there was a bond hearing but alleges that because his client does not speak or understand English, he did not have “a complete understanding of the bond proceedings.” Saenz states that he thinks his client did not have an interpreter. He also says, in the video, that his client says that his family tried to pay his bond but was not allowed to.

The bond hearing was held via a video phone call on the same day Rodriguez was arrested, according to court records. Justice of the Peace Michael Roach conducted the hearing from his home, since the arrest occurred on a Sunday, a day when the courthouse is closed and Roach is officially not at work. Because Rodriguez does not speak English, Roach arranged for Rodriguez’s uncle, a Breckenridge citizen, to interpret the proceedings for him. A video of the proceedings is available that shows the entire event, with video of Roach at his desk at home and Rodriguez at the jail and audio of the uncle on the phone.

In the bond hearing video, Roach goes over the two charges that Rodriguez faces, as well as his rights. Rodriguez indicates on the video that he understands.

During those proceedings, Roach set the bond for the criminal trespass at $1,000 and the bond for the burglary of a habitation at $10,000.

“That’s very low for a second-degree felony,” Roach tells the uncle. “But, I’m taking into account the full story here and (giving) him the opportunity to do the right thing here.”

When asked if Rodriguez’s family had been denied the opportunity to post bail for him, Stephens County Sheriff Will Holt said that the family had inquired about it, but once they found out there was an ICE hold on Rodriguez, they decided against it.

“The inmate had an ICE hold, so it makes no difference if he can post bail, because he cannot get out due to the ICE hold,” Holt said in an email to the Breckenridge Texan. “Additionally, my jail floor sergeant remembers having a conversation with this inmate’s family about them bonding him out. When the family realized that ICE had placed a hold on (him), they decided not to bond him out, because it would have been a waste of their money.”

Allegation: Marriage Request Denied
In the original video, Saenz states that it is tremendously egregious that Rodriguez and his girlfriend were not allowed to get married in the jail. He alleges that the marriage license had “gone stale” and indicates that Rodriguez’s constitutional rights were violated because he is an immigrant.

According to court records, the couple applied for a marriage license on Feb. 13, 2018. Texas law gives couples 90 days to get married after they obtain the license. The law was changed from 30 days to 90 days in 2013. Therefore, by the time the video was posted on April 4, the license had not expired and would not have expired for more than a month.

The sheriff said that when he first received the request for the marriage, he was unsure of the legal issues involved and was concerned about security.

“The marriage issue in jail is not clearly settled. So there’s case law saying that prisoners in state prisons must be allowed to be married, but that only addresses prisoners in state prisons; it doesn’t address inmates in county jails,” Holt said. “I talked to two different legal representatives from the Texas Association of Counties, and I got two different answers from them. And then I talked to some other attorneys that I know that work around the state in various capacities, and I got different answers from them. Basically, some of the attorneys said that case law shows you must let them marry, and the other attorneys said that there’s no case law addressing whether you can or cannot deny the marriage. So, because I had some attorneys saying you must let them marry, and other attorneys saying there’s no definitive answer on whether you can or cannot deny it, I chose to err on the side of caution, in terms of being in accordance with the law, and allow the marriage.”

Justice of the Peace Roach, who is also a minister, performed the marriage on April 5, 2018. To alleviate the security concerns, the bride and groom were in different rooms when the marriage took place.

“Personally, I think it’s a discredit to the sanctity of marriage for something like that to go on in a jail; that’s my personal opinion,” Holt said. “I think it’s a discredit to the sanctity of marriage; however, I’m not in the business putting my personal opinion into my job. I have to follow the law. And the legal opinions that I got… like I said earlier, some of the legal opinions said that I had to allow it, according to case law from the Supreme Court of the United States, and the other legal opinions that I had said that there was no clear guidance yea or nay on whether I could deny it. So that’s why I chose to allow it, because there was no clear evidence that I could legally deny it.”

Allegation: Unlawful Arrest
In addition to the allegations made on the videos, Saenz alleged in the phone interview with the Breckenridge Texan that the arrest was unlawful because the police officers did not speak Spanish, and Rodriguez did not speak English.

“If an officer arrests somebody, they’re (the officers) not fluent in Spanish, and simply because they (the person being arrested) cannot verbalize a defense or an explanation or the circumstances in which they find themselves in, that doesn’t raise probable cause categorically,” Saenz said. “I saw that, at every opportunity of this case, was the state’s – Stephens County’s – inability to communicate, from the very first contact, with my client. It was that inability that landed him several months in detention and in the situation in the immigration process.”

According to Breckenridge Police Chief Larry Mahan, police officers responded to a 9-1-1 call from a woman’s young son, saying that Rodriguez had broken into the house.

When the officers arrived, according to the official complaint filed with the Justice of the Peace, the woman told officers the man had pushed a window air conditioning unit into the residence and climbed through the window. She said that when she attempted to call 9-1-1, the man grabbed her from behind and took her phone. The report said she had red marks on her neck and chest and a small cut on the left side of her neck that was bleeding.

She told officers that she and Rodriguez were in a dating relationship but that he did not live at the residence. Officers also determined that Rodriguez had an active Criminal Trespass Warning issued against him for that address and was not allowed to be there.

Mahan acknowledges that the officers do not speak Spanish, and said, “So, if somebody doesn’t speak English, we should just let him go away? He knew he wasn’t supposed to be there; he pushed in the air conditioner to get in the house. It wasn’t like he walked through the front door.”

Mahan said that typically when Breckenridge police officers are dealing with a person who does not speak a language the officers are fluent in, they try to get an interpreter. “Of course, at 4 o’clock in the morning, you can’t get an interpreter,” he said. “And, quite honestly, at 4 o’clock in the morning, when you’ve got a guy that the lady says isn’t supposed to be in her house and he’s in her house, we usually just take him to jail and let them do the interpretation. We’re not interviewing him; we’re not taking a statement from him or anything like that. Quite honestly, what are we supposed to do? We can’t just let him go because he doesn’t speak English.”

At the Stephens County Jail, however, there are several people who speak Spanish, including a part-time female detention officer, a full-time deputy and a full-time male detention officer from Colombia, who has been an official interpreter and translator, the sheriff said.

“I also speak limited Spanish and can get through most law enforcement contacts,” Holt said. “Between our deputy and our detention officer(s), who speak Spanish, we’ve always been able to get by quite easily; that’s been a non-issue on our end.”

Conclusion
Toward the conclusion of the follow-up video, Saenz makes the following statement:

“Due process and Constitutional rights are afforded to everybody within the United States borders. That’s just law; that’s a fact. It’s really not up for debate at this point. So, I feel that this is a very teachable moment. And, as I’m getting more information, it just seems like Stephens County, like many counties are not prepared for some of the problems that we’re seeing today with a lot of changes in immigration, and the federal government’s putting pressure on the local governments to hold people that may have an immigration status violation. I have reached out to…the County of Stephens sheriff’s department, and hopefully we can get some good dialogue going.”

In response to Saenz’s comments, Holt made the following statement:

“Mr. Saenz is deceptively clever in the way he frames his client’s/our former inmate’s predicament two months ago. First, the federal government has put zero pressure on me or my agency regarding us detaining illegal immigrants. This is a self-created problem verbalized on the Internet by Mr. Saenz, and it simply has not occurred at the Stephens County Jail.  …  Second, my office and the Justice of the Peace Office handled everything by the book. When legal questions arise, such as allowing an inmate to marry, we consult with numerous legal advisors from various state agencies and private organizations. This is what every sheriff and other elected officials are taught. Doing so delayed the action that Mr. Saenz wanted us to take, but it ultimately did not deny him or his client any privilege or right. Mr. Saenz would have you think that it did.”

Additionally, the sheriff said, “I see no need to communicate with Mr. Saenz. Perhaps he means well, but he severely misspoke about the Sheriff’s Office and the Justice of the Peace Office. As sheriff, I am always open to learn better processes and new case law. These must come from officials and professional entities who are proven in their fields and have enough class about themselves to offer different ways of ethical thinking and operating a criminal justice agency other than metaphorical cannon shots across my bow, by way of YouTube.”

Story by Tony Pilkington and Carla McKeown

Cutline, top photo: This screenshot shows Attorney Arvin Saenz’s original video regarding his client who was detained in the Stephens County Jail for 90 days before being transferred to a an ICE facility. That video has since been removed from YouTube, and Saenz has posted an update on the situation.