State District Judge Roland Andrade ordered the release of 250 migrants jailed in two Texas counties. The men were released on no-cost bonds Tuesday. Most of the men were arrested by Texas state police and accused of trespassing on private property under Abbott’s new policy.

Judge Andrade, who entered office on January 1, 2021, is a Republican. Texas RioGrande Legal Aid (TRLA), the largest provider of free legal services in Texas, argued in court that the men should be released because they were being denied due process under Texas law. Texas law requires criminal defendants to be released from jail on no-cost bonds if prosecutors do not file charges quickly. For trespassing, the deadline to file charges is set at 15 or 30 days, depending on the charge level. The judge sided with the defense attorneys.

Kristin Etter, an attorney with Texas RioGrande Legal Aid, which represents the migrants, said at the hearing before state District Judge Roland Andrade that her organization had made an agreement with the Val Verde county attorney to release 75 defendants arrested there who had been jailed without charges filed for more than 15 days. Kinney County prosecutors agreed to the release of another 168 defendants who had not had a charge filed against them in 30 days or more.

Etter argued that the men should be released from state custody after 15 days, as would apply to typical trespassing cases. When the legal aid group’s petition was filed on Sept. 15, that included 55 men arrested in Val Verde County. By the time of the hearing, 75 men had surpassed the deadline agreed to by the prosecutor. Kinney County, however, countered that the disaster declaration Abbott has issued for the border enhances the cases to a higher level of misdemeanor, which would give officials 30 days to file charges. The judge agreed to Kinney County’s 30-day limit.

This is being seen as a defeat of Abbott’s crackdown at the southern border. The governor decided to arrest migrants crossing the border illegally and crossing over private property. Since state police and courts have no jurisdiction over federal immigration law, police are arresting migrants for state crimes like trespassing. The problem is that local community justice systems are overwhelmed by the number of migrants being held in local jails cleared out to house the migrants in small border regions. Court filings are delayed, as well as lawyer appointments and documenting the migrants. As of Monday, all but 11 migrants in jail were arrested in either Val Verde County or Kinney County. So far about 1,000 men have been arrested on trespassing charges. When Abbott implemented the new policy, he specified that only men would be jailed, not migrant women and their children.

Just after the hearing brought by TRLA on Tuesday, Andrade also heard separate cases regarding two imprisoned individuals arrested in Kinney County that challenged Abbott’s system and the arrests more broadly. In part, the attorneys argued that police were wrongly selective in their arrests on trespassing charges by only arresting men who were almost exclusively Hispanic.

Kimble County District Attorney Tonya Ahlschwede, who acted as an assistant county attorney for Kinney County Attorney Brent Smith, at first agreed to release the men on no-cost bonds, as had been decided in the other cases. But the defense challenged the underlying arrests of their clients, claiming the state illegally arrested and detained them.

Ultimately, when the judge opted not to delay the hearing, Ahlschwede offered to dismiss the criminal cases against the two men. Amanda Woog, executive director of the Texas Fair Defense Project, said after the hearing that the prosecution wasn’t prepared to argue in support of the arrests and continued detention. She added the ruling should be a call to action for other defense attorneys with migrant clients.

“It shows what a sham these arrests and prosecutions are,” she said. “When they’re actually put to the test, they fold.”

Opponents to Abbott’s decision to jail the male migrants on trespassing charges may not agree with that action but it is a way to control the crowds of migrants who congregate along the border. They aren’t sham arrests. Personnel are overwhelmed and with proper numbers of staff, it’s likely the time delays wouldn’t happen. There were more than 900 men jailed in two Texas prisons converted into state immigration jails as of Monday. Abbott’s policy is described as a “catch and jail” border security policy, in contrast to the catch and release policy of the Biden administration.

So, what happens to these 250 migrants now? It’s unclear at this point.

It’s unclear what will happen to the men when they are released from state custody. Federal immigration authorities may choose to take them into custody or deport them, or they may be released into the United States while awaiting their criminal and potential immigration proceedings.

These are likely the beginning of what will be many more legal challenges to jailing male migrants on trespassing charges on private property. Open borders advocates will continue to push back against Governor Abbott’s actions to secure the southern border with Mexico. It sounds like with an adequate amount of staff, the delays in court filings and processing arrest documentation would end. If I was a betting person, my money would be on the migrants being released while they wait for their day in immigration court. Abbott’s catch and jail program turns back into Biden’s catch and release program.