District Attorney Bill Hicks making progress on Walmart case, but case backlog lingers

A day after being appointed to lead the highest law enforcement seat in West Texas, prominent Texas attorney Bill Hicks walked into a chaotic El Paso County District Attorney's Office that was understaffed and mired in controversy.

Hicks inherited a backlog of 14,000 cases, 20 open prosecutor positions and no El Paso Walmart shooting team to handle the biggest capital murder case in city history.

"One thing I've committed to do is to not look backwards, but to look forward," said Hicks, who was appointed DA by Gov. Greg Abbott in December 2022. "I will say that there were a lot of concerns that I had when I took over this office. We have had to do a lot of work in restructuring the office and moving us forward."

Hicks replaced District Attorney Yvonne Rosales, who abruptly resigned Nov. 28 as she faced a trial to remove her from office and accusations that she and her staff intimidated witnesses in the El Paso Walmart mass shooting case. Her last day in office was Dec. 14, 2022.

The petition to remove Rosales was filed Aug. 24 by El Paso lawyer Omar Carmona. He alleged "official misconduct and continued incompetence" by Rosales and her administration.

After six months in office, Hicks has formed an experienced three-person Walmart shooting prosecution team and addressed staffing woes, but he and El Paso defendants still are struggling with a massive backlog of pending criminal cases.

El Paso County Attorney Jo Anne Bernal, who would have tried the case to remove Rosales from office, declined to comment on the current state of the District Attorney's Office.

Through a county spokesperson, Bernal listed several reasons why she declined to comment, including that her "primary duty is to uphold the law and maintain impartiality in all matters."

"Offering an opinion on the job performance of the new district attorney, who is a fellow public servant, may be perceived as biased and could compromise the trust that the community places in our respective offices," she said.

Carmona, who raised the red flag on the beleaguered District Attorney's Office, said Hicks' reforms are "heading in the right direction."

"It is much better. It just seems like the people are being positioned in a place where the DA's Office is more likely to succeed, which wasn't the case under the last administration," Carmona said, "but I do think that it's definitely heading in the right direction. It's just gonna take awhile, but it's definitely going in the right direction."

Concerns, however, remain as thousands of people arrested remain on court-ordered bond conditions without being charged with a crime, El Paso County Public Defender Kelli Childress said.

"There is definitely still a concern on our part with respect to our clients who are suffering with bond conditions that should have long been discharged," Childress said. "These clients haven't been found guilty. They haven't even been charged yet.

"They literally have not been charged with a crime, but they've been following bond conditions as they sit and wait to see what happens in their case. This is just what we are seeing with public defender clients. There are still people throughout the whole county who are still following bond orders without even being charged."

Case backlog continues to be main issue in DA's Office

The previous administration left Hicks' staff with a backlog of more than 14,000 cases. The backlog peaked at around 17,000 cases under Rosales administration, Hicks said.

In the final months of Rosales' tenure, the El Paso Public Defender's Office successfully got hundreds of cases dismissed due to inaction by the District Attorney's Office. The dismissals came as part of 32.01 motions, which allow for clients to be dismissed from bond conditions if they have been under those conditions for 180 days without having a charge filed against them.

The Public Defender's Office has not filed a new rounds of 32.01 motions since Hicks' appointment. It was prepared to file about 600 motions, but it was unable to get court hearings on the cases, Childress said.

The Public Defender's Office then attempted to get the Texas Eighth District Court of Appeals to hear the matter, but Hicks' staff indicted the cases the public defenders were challenging had now been charged, "rendering the matter moot," Childress said.

Currently, the Public Defender's Office has about 900 cases eligible for a 32.01 motion, she said.

The action so far by the district attorney in regard to the number of cases being handled by the Public Defender's Office has been "disappointing," Childress said.

"These unfiled case referred to as a backlog are having a massive impact on our clients and our community," Childress said. "That's where it concerns me the most. We do no work on the case because we can't. We're kind of sitting around helpless, but we're watching people's lives being deeply impacted."

Impact on people's lives

While cases remain in limbo, accused people's lives remain in legal turmoil.

"There are people who can't go into a restaurant with their family for a birthday party because the restaurant serves alcohol, and that's a bond condition. People who can't maintain the job they currently have with a new work schedule that comes out weekly because they have to be in a certain place at a certain time each week," Childress explained. "Some of the worst cases are those related to DWIs, where people are paying a lot of money to install devices that determine when they can and can't get in their cars because of having a drink of alcohol. These are people who have not even been charged with a crime."

According to internal data kept by the Public Defender's Office provided by Childress, more and more cases continue to reach the 180-day time period.

The Public Defender's Office had more than 1,000 32.01-eligible cases dismissed already, and several hundred others were declined pursuant to an October 2022 agreement with the Rosales administration, Childress said.

Hicks said the backlog has dropped below 10,000 cases. Childress questioned that number since her office has only seen a 5% reduction in cases in the more than six months Hicks has led the District Attorney's Office.

"While we represent about 40% of filed (charged) cases, we probably have a much lower percentage of the backlog (uncharged) cases, because so many of ours have been dismissed," Childress said. "Mr. Hicks claims the overall backlog has been decreased by more than 28%. But if that is true, I'm troubled that our backlog reduction has only been 5% ‒ or 94 cases ‒ in six months."

Hicks said he is not sure where the Public Defender's Office is getting its data from, but his office does not keep track of which cases come from private defense attorneys or the Public Defender's Office.

"The answer is much more complicated, but the Public Defender's Office, and I don't want to say this disparagingly, but the Public Defender's Office has no idea what the intake process is of the District Attorney's Office," Hicks explained. "I honestly have no idea why they think they have 5% of something or 94 cases that has absolutely nothing to do with our backlog and our numbers."

Hicks added each case his office receives can have multiple defendants and multiple charges. The District Attorney's Office can then add charges or drop charges, so the number fluctuates depending on what action his office decides to pursue.

Cases dismissed through a 32.01 motion can later be refiled by prosecutors.

The DA's Office is focusing on addressing new cases and backlog cases where the statute of limitations to file charges is approaching, he said.

The statute of limitations for misdemeanors is two years and typically three years on a felony, he said. Crimes like capital murder, murder and sexual assault of a child have no statute of limitations.

"My instructions to the intake division were: address the new cases as they come in first; second, address the cases that are approaching the statute of limitations," Hicks said. "In addressing the cases from the backlog, the older cases, the intake section are addressing DWIs and cases with victims first, followed by administrative crimes and drug cases last.

"I don't want to lose those cases because we hit the statute of limitations because the DA's Office just didn't get to their case."

Overall, Hicks said he is working to regain the public's trust in the DA's Office.

"We are working very hard to re-earn their trust," Hicks said. "And part of that is those cases where people did the right thing, they called the police. The police investigated the cases and the cases were submitted to the DA's Office. We're working very hard to get to those cases. So if a person was a victim of crime a year, a year and a half ago, and nothing has happened on their case, we want them to know we're working very hard to get to their case."

Progress in the Walmart mass shooter case

The District Attorney's Office's biggest case – El Paso Walmart mass shooting – hit several road blocks during Rosales' two years in office.

The District Attorney's Office is now making progress on the case and will be ready to try the case when a trial date is set by 409th state District Judge Sam Medrano, Hicks said. It's unclear when Medrano will act on a trial date.

"In the Walmart case, there were many issues that had cropped up that were, I'll just say, issues that were sidelining that case," Hicks said. "My number one goal was to put that case back on track. And I feel very confident now that when that case comes to trial, we will be ready. We have a good, dedicated team of prosecutors on that case who are going to be ready to go to trial when that case is set for trial."

A gag order issued in the case prevents Hicks, his prosecutors, defense lawyers, witnesses, family members of the victims, or anyone else associated with the case from discussing it.

Judge Medrano declined to comment on the status of the case and the progress made on it under the new district attorney.

Hicks has brought in several attorneys with experience trying death penalty cases to handle the Walmart case. Twenty-three people were killed by an admitted white supremacist who entered the store Aug. 3, 2019, to target Hispanics.

Loretta Hewitt, Rebecca Tarango and Ron Banerji are assigned to the case. The prosecutors are working "40 hours a week" on the case, Hicks said.

Tarango was originally one of the prosecutors working on the case prior to Rosales eliminating a quarter of the district attorney's staff when she took office.

Hicks, along with prosecutors Rick Locke and John Briggs, also are actively involved in the development and strategy sessions on the case.

In state court, Patrick Crusius, 24, is facing one count of capital murder of multiple persons and 22 counts of aggravated assault with a deadly weapon.

The District Attorney's Office is seeking the death penalty.

The last action taken in the case was on June 16, when a written notice of prospective witnesses was filed, court records show. A copy of the notice was not immediately available.

Earlier this year, the gunman pleaded guilty Feb. 8 to 90 charges in federal court stemming from the mass shooting. The charges included 23 counts of hate crimes resulting in death, 23 counts of use of a firearm to commit murder during and in relation to a crime of violence, 22 counts of hate crimes involving an attempt to kill, and 22 counts of use of a firearm during and in relation to a crime of violence.

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Crusius' guilty plea was part of an agreement with federal prosecutors. The details of the plea agreement have not been released.

He was sentenced July 7 to 90 consecutive life sentences in the federal case, meaning he will spend the rest of his life in prison. The U.S. Attorney's Office elected not to seek the death penalty.

Hicks: Community deserves experienced prosecutors

One of Hicks' other priorities was restaffing the DA's Office with experienced prosecutors.

In the weeks before Rosales took office in January 2021, she announced 25% of the previous administration's staff would not return, resulting in the office losing as many as 40 of 90 prosecutors. This included prominent prosecutors with experience in handling major cases in El Paso. The overall number of staff lost included many who were not prosecutors.

"The serious kind of trial work that we do with murders, with sexual assault of a child, with intoxicated manslaughter, these very, very serious heavy hitting cases are not the kind of cases that you want to send a young prosecutor who has had five or 10 trials under their belt, and they haven't had a murder case before," Hicks said. "The citizens of our community deserve experienced prosecutors. We've brought experienced prosecutors back."

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The District Attorney's Office currently has 80 prosecutors. There were about 60 attorneys working for the office when he took over, Hicks said.

"Our manpower chart fluctuates almost daily," Hicks said. "For example, this summer we have brought on over 15 interns who are helping throughout the office, but particularly in the intake division.  We have approximately 80 attorneys overall but are ... losing an attorney that wants to move back to East Texas to be close to family at the end of the month. Such is the nature of a large law firm."

Along with the Crusius case, the District Attorney's Office is seeking the death penalty against Facundo Chavez.

Chavez faces one count each of capital murder of a peace officer and unlawful possession of a firearm by a felon. He is accused of fatally shooting El Paso County Sheriff's Office Deputy Peter Herrera during a March 22, 2019, traffic stop in San Elizario.

With two major death penalty cases pending, the lack of experienced prosecutors was an issue immediately addressed as soon as he took over the DA's Office, Hicks said.

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"When I took over the office, and I walked in the doors on the 15th of December, I was the only prosecutor who had death penalty experience as a prosecutor in this office," Hicks said. "That's it. Just me.

"We now have six prosecutors who have death penalty experience in order to move forward on the cases that we have now. It's not that we have or need six prosecutors to prosecute two death penalty cases, but that speaks to the depth of experience in the level of prosecutors that we've brought back to this office."

While experience prosecutors are key to the DA's Office, Hicks also is working on getting young prosecutors the experience they need to advance in their careers and help the DA's Office meet its goals.

"We still have very hardworking public servants, young, inexperienced prosecutors who are learning and getting that experience," Hicks said. "And that's great. And that's what we're here for. It's what all district attorney's offices are like with young, inexperienced attorneys who get that experience. But they should get that experience under the tutelage, training and mentoring of experienced prosecutors. When I took over, this office didn't have that kind of mentoring process. It does now."

Aaron Martinez may be reached at amartinez1@elpasotimes.com or on Twitter @AMartinezEPT.

This article originally appeared on El Paso Times: El Paso County DA Bill Hicks makes progress on Walmart shooting case