DA set to use office funds for defense in SB 4 suit
The El Paso County Commissioners Court and District Attorney Bill Hicks are locked in a battle over legal expenses related to a controversial law expanding Texas’ role in immigration enforcement.
The county filed a lawsuit challenging the legality of Senate Bill 4 two months and Hicks, in his official capacity as the DA in District 34, is listed as one of two state defendants.
Commissioners have repeatedly rejected — most recently during its meeting their Feb. 5 meeting — Hicks’ request for $100,000 to hire outside legal counsel to represent him in the lawsuit. They argue the state should foot the bill.
“The straw that broke the camel’s back in my decision is that the district attorney has access to representation from the state, but he has chosen not to use them,” Commissioner Carlos Leon said. “Why put it on the backs of our taxpayers when it’s already accessible to him without it costing a penny to El Pasoans?”
At last week’s meeting, Hicks asserted without a special allocation from the Commissioners Court he would be forced to take the money from his office’s asset forfeiture fund. That would mean less funding for some specialty courts and training programs.
While the tension between the Commissioners Court and the DA is on its face over a funding request it represents a larger issue shaded an ideological divide over immigration in Texas.
Hicks, currently running for election to the district attorney’s seat as a Republican, was appointed by Gov. Greg Abbott to replace former District Attorney Yvonne Rosales after her resignation in December 2022.
Three candidates are on the Democratic Party primary ballot in the district attorney’s race. The winner will face Hicks in the November general election.
Commissioner Sergio Coronado, who did not respond to a request for comment, said during last week’s meeting that he hoped the Commissioners
Court’s decision didn’t appear political. Hicks was hesitant to describe it that way.
“I don’t answer to the governor’s office. I don’t answer to the attorney general’s office. I answer to the people of this community,” Hicks said. “It’s not about being a Republican, it’s not about being a Democrat, it’s about serving justice for this community.”
Why is El Paso County suing over SB 4?
SB 4 is a sweeping immigration bill approved by the Texas Legislature and signed into law in December 2023.
The bill makes it a state crime for migrants to enter Texas illegally. It gives state law enforcement and judges the authority to arrest, detain and deport migrants.
For Commissioner David Stout, pushing back against the new law is matter of economic life or death for El Paso.
For one thing, the number of new arrests that would be made under the new law would mean more people that the county would have to house.
“We might have to build a new jail,” Stout said. “Just the operation of this jail and the cost of housing those folks would cost us about $40-$50 million a year. So, it would have huge detrimental impacts to our community. It would break us.”
In addition to the economic impact, Stout said the law simply doesn’t jibe with El Paso’s culture.
“This law is not in line with the values we espouse here in El Paso,” Stout said. “It’s going to lead to more racial profiling. It’s going to push people back into the shadows.”
He also claimed that the new law would give the Texas Department of Public Safety “more license to be running amok and causing problems within our communities.”
“It’s unfair for our community to be saddled with this and the costs it would bring about,” Stout said, “and for this community to be punished because we’re trying to bring a lawsuit to keep this from happening.”
Hicks’ involvement in SB 2 lawsuit
One day after the bill was signed by Abbott, Dec. 18, 2023, the Commissioners Court voted unanimously to file a lawsuit over the law that named two defendants — Texas Department of Public Safety Director Steve McCraw and Hicks.
“This is the only time that anyone can ever remember a situation where the Commissioners Court has sued a district attorney,” Hicks said. “They have to show El Paso County has some kind of specific harm ... for El Paso County to be in the lawsuit.”
The Commissioners Court could have chosen to name any law enforcement official in El Paso — from the El Paso County Sheriff’s Office to the El Paso Police Department or even a county constable — but “they chose to sue me,” Hicks said.
But Stout and Leon asserted that Hicks’ inclusion in the case was necessary.
“Our attorneys advised us that we had to sue our district attorney as we go toward Texas in reference to SB 4,” Leon said. “So we understood, the court understood, our district attorney had to be sued.”
Stout said the decision to include Hicks was just a matter of “protocol when it comes to these types of lawsuits.”
“It’s not because we have anything against him individually or personally,” Stout said.
Why did Commissioners Court deny Hicks’ request?
Because Hick is listed as a defendant in the county’s case against the state, Hicks asked the Commissioners Court to cover the cost of hiring an attorney, a local attorney familiar with El Paso.
“Obviously, I’m obligated to be at the hearings. I’m obligated to respond to the request for injunction. I’m obligated to participate,” Hicks said. “(But) this is really outside of my depth ... so I need to have someone represent me.”
Hicks noted that on several occasions the Commissioners Court covered the cost of outside counsel for former District Attorney Jaime Esparza when he was sued in his official capacity. The only time Hicks could recall a district attorney being denied such support was when Rosales requested assistance in a personal lawsuit — even then, however, commissioners agreed to reimburse her if she won the case.
In other instances, the county attorney would be called on to represent the district attorney’s office, but the county attorney is representing the county in this lawsuit and representing the district attorney would represent a conflict of interest.
But commissioners have asserted that Hicks has access to representation through the attorney general’s office and El Paso taxpayers shouldn’t be strapped with the cost of paying for additional counsel.
“I understand he may want to have his own attorney,” Stout said, “but it should be the state that pays for that.”
Hicks, however, sees the issue differently.
“It is true that the office of the attorney general has offered to represent me,” Hicks said. “The office of attorney general has discretion over whether they can or want to represent me ... the problem I have is that I have divergent interests between the office of the attorney general and the direction I want to go.”
While the state will be asserting the legality of SB 4 and the county will be arguing against it. Hicks said his role as the county’s top prosecutor is to enforce the law.
“They want to zealously defend the constitutionality of SB 4. Obviously, the county wants to zealously prosecute their lawsuit that says SB4 is unconstitutional,” Hicks said. “I feel in my role as the chief law enforcement official for these three counties, that my position in relation to SB 4 is that I’m not a legislator, I’m not a lobbyist, I’m not an individual who wants to lobby one way or another regarding the constitutionality of SB 4. My position as a prosecutor is to take the law as it is given to me and enforce the law.”
“I want to zealously defend my right to do that,” he continued.
Hicks contends that local representation would give him a better shot at pleading his case, a case unique to his position as El Paso’s lead prosecutor.
“By having a local attorney representing me and representing the interests of the local community, I have a fair voice at the table,” he said. “It’s very important that I have that voice representing me and representing the people here in El Paso. Unfortunately, the commissioners do not see it that way so they have refused to fund my defense.”
What’s next?
With commissioners unanimous opposed to paying for Hicks’ defense, the district attorney is looking to pull the needed funds from his office’s asset forfeiture funds.
Asset forfeiture funds are already budgeted, so tapping into those funds means other programs are going to take a hit.
The first $40,000 would be taken out of specialty courts programs, such as DWI court, drug treatment court, mental health court and veterans court, Hick said. If that doesn’t cover it, the next slice of money will come out of the budget for training programs.
“I have very young attorneys ... so we send these attorneys to training all over the state to get specialized training,” Hicks said. “We need to send our attorneys to training courses, but if we don’t have the funds, we’re not going to be able to send them to training courses.” For Leon, that’s unacceptable. “Shame on him,” he said, “to take away training that will benefit his office through those employees.”