Walmart mass shooting case looms over El Paso district attorney race (2025)

Nearly two years after El Paso’s former district attorney resigned as she faced removal from office, the two candidates running for DA hope to move the Walmart shooting case forward while rebuilding staffing in the office.

Incumbent Bill Hicks, a 54-year-old Republican, was appointed to the job by Gov. Greg Abbott in December 2022, shortly after former DA Yvonne Rosales’ resignation.

His challenger is James Montoya, 33, a public defender and former assistant district attorney who lost to Rosales in the 2020 Democratic primary.

The district attorney prosecutes state cases in Culberson, El Paso and Hudspeth counties, which are within the 34th Judicial District. The office also administers the Victim Assistance Program for victims of misdemeanor, felony and juvenile crimes. The DA’s office has a $23 million budget this year and 185 employees.

The DA serves a four-year term and is paid $198,000 a year.

Early voting runs from Oct. 21 to Nov. 1. Election Day is Nov. 5.

Future of Walmart mass shooting case

The next DA’s biggest task will be concluding the state’s case against Patrick Crusius, the Aug. 3, 2019, gunman in the El Paso Walmart mass shooting.

Crusius pleaded guilty last year to federal hate crimes and weapons charges after the U.S. Department of Justice decided not to seek the death penalty. He was sentenced to 90 consecutive life terms in federal prison.

Hicks is pursuing the death penalty on state capital murder charges. He said Crusius “is going to be the second white supremacist I put on death row.” In 2005, Hicks was an assistant district attorney in El Paso and one of the prosecutors who won a capital murder conviction against Justen Hall. Hall was found guilty of strangling a 23-year-old woman in 2002 and was identified as a member of a white nationalist gang. Hall was sentenced to death row in 2005 and executed in 2019.

Last month, 409th District Judge Sam Medrano issued a scheduling order for the Walmart case that has arguments on pretrial motions beginning in January 2025 and jury selection possibly beginning in January 2026.

At a Sept. 12 hearing, Hicks said prosecutors were ready to proceed toward trial but defense attorneys said it would take them as much as two years to go through evidence turned over by prosecutors in what they called a disorganized manner.

“I’m a little frustrated that it’s going to be (January 2026) before we’re going to actually start jury selection,” Hicks said. “I think we could do it faster than that. But the judge controls the calendar, and he has us set for January. So, I’m pleased that we’re moving forward.”

While campaigning this year, Montoya has suggested he’ll likely continue to seek the death penalty if elected, although he has said he could veer from that depending on what the trial schedule for the Walmart case is in January 2025.

Now, a month before the election and with a preliminary trial schedule in place, Montoya said Medrano’s scheduling order “seems realistic, in terms of moving things along.”

“I’m appreciative the judge released the schedule,” Montoya said in an interview when asked if he would continue the state’s death penalty case as the next DA. “It gives me a lot to think about heading into January.”

But before a trial advances, Hicks’ office during an Oct. 31 hearing will have to respond to recent allegations from Crusius defense lawyers that the DA’s office listened to confidential phone calls between Crusius and his lawyers and withheld evidence favorable to Crusius, among other accusations.

The allegations of prosecutorial misconduct implicate both Hicks and Rosales, but to a lesser degree also implicate Montoya – who was an early prosecutor on the Walmart case during the time that the defense alleges the prosecution listened to calls between Crusius and his lawyers.

Montoya declined to comment on the defense lawyers’ motion, which calls on Medrano to prevent the state from seeking the death penalty.

“I don’t think it’s appropriate to litigate the facts of the case in the media,” Montoya said.

For his part, Hicks said his office would respond to the defense team’s motion in court, but he dismissed the accusations.

“I feel very confident that we have not violated any laws,” Hicks said.

“The defense has a job. Their job is to try to save the Walmart shooter’s life,” he said. “And if that means delay this case, they’re going to do everything they can to delay the case.”

El Paso DA office staffing shortage

A shortage of lawyers working at the DA’s office is the other key issue both candidates are focused on addressing.

Rosales resigned two years into her term before a trial to remove her from office was to be held. She was criticized for getting thousands of criminal cases dismissed without a trial or hearing, for dismantling the domestic violence unit and mishandling various criminal cases.

Rosales fired dozens of lawyers and other employees when she took office in January 2021. Chronic staffing shortages after the mass terminations – and disruptions caused by the pandemic – plagued the office throughout Rosales’ tenure, leading several judges to criticize the office for being unprepared to try cases.

Hicks has blamed the ongoing staffing shortage during his tenure largely on Rosales, who he said fired nearly half the attorneys in the DA’s office when she took office.

“When (Rosales) came into the office, she looked around and said ‘Who supported my opponent?’ And fired everyone who supported her opponent. She played politics with the office,” Hicks said. “She fired 40 attorneys. It is almost impossible to, overnight or even over a long period of time, replace those 40 attorneys.”

Hicks said Friday that there are 74 or 75 lawyers currently on his office’s payroll – similar to the number of lawyers Hicks said were working in the office in the spring. A fully-staffed DA’s office would have 93 attorneys, but the office historically has rarely been fully staffed, Hicks said.

While the DA’s office has added lawyers under Hicks, 10 of the attorneys Hicks hired within the last year have left the office, mostly for better pay elsewhere, Hicks said.

“I can’t compete against somebody who comes up to my office and says, ‘Hey, I got a job offer for $15,000 more a year,’” he said.

Since pay in the DA’s office is often uncompetitive with compensation at private law firms, the office has to lure young lawyers who want to gain trial experience, Hicks said.

The DA’s office is waiting for a handful of attorneys to get the results of their bar exams likely within the next week, Hicks said. If they all pass the exam, he said, the number of lawyers working in the office would rise to the low 80s.

The office is adequately staffed with lawyers in its misdemeanor prosecutions unit as well as in specialty units that handle crimes such homicide, narcotics and rape and child abuse, Hicks said.

But the office is “woefully short” on attorney staffing in felony court, he said. Hicks’ goal is to promote misdemeanor lawyers to felony court, and fill those misdemeanor prosecutor slots with the batch of young attorneys awaiting their bar results.

“While we are nowhere near hitting that 93 mark, we are not in a critical shortage position,” Hicks said. “There’s nothing James Montoya has that is going to solve the manpower shortage.”

Since the start of his campaign last year, Montoya has promoted his wide-ranging experience – including time spent as a homicide prosecutor in El Paso and on a Native American reservation in Oklahoma – and has said he could recruit numerous lawyers to boost staffing in the DA’s office.

“I continue to have former colleagues that I used to work with at the DA’s office, new colleagues at the public defender’s office, people in private practice, who have expressed a willingness and an eagerness to come work for the DA’s office starting in January,” Montoya said. “We’ll have a significant infusion of talent and staff starting at the beginning of my term.”

The problem of not enough lawyers working in the DA’s office has persisted for nearly two years since Hicks was appointed, Montoya said.

“Staffing in the office continues to be severely undermanned,” he said. “What we are seeing in courts day-to-day is these young lawyers are so overwhelmed … that they don’t have the time to prepare cases for trial.”

In exit interviews conducted over the last year, some lawyers who have left the DA’s office – though not all – suggested the lack of staffing has led to overworked lawyers and low morale in the DA’s office.

“The District Attorney’s Office is desperately in need of change of its leadership,” Montoya said. “I think it’s going to take us several years, truly, to rebuild the DA’s office from where it is now.”

Transnational crime, domestic violence unit

Another priority both candidates want to focus on is prosecuting transnational criminals – such as gang members associated with the Tren de Aragua Venezuelan gang that received a flurry of attention in recent weeks.

A day after Gov. Greg Abbott and the director of the Texas Department of Public Safety held a press conference last month calling El Paso “ground zero” for the TDA gang’s activity, Hicks held a press conference to downplay those concerns.

“Some of the comments that were made by the governor’s office and DPS made it sound like El Paso was the focus of TDA activity, and that’s kind of where I differed,” Hicks said.

“I don’t believe that El Paso is the focus of TDA activity. It may be the starting point or the jumping off point, but it’s not the focus. TDA activity is spread out in Dallas, Houston and Colorado, and all over the country,” he said. “While we have TDA activity here, I’m very confident in our law enforcement.”

Montoya, meanwhile, said “transnational crime is real” in El Paso. But he said that’s why the DA’s office should focus on prosecuting violent criminals and gang members, instead of pursuing the migrant “riot” cases in which over 140 mostly Venezuelan migrants were arrested after pushing their way past a temporary state barrier and injuring some state troopers near the border wall in an attempt to turn themselves over to federal Border Patrol agents.

The charges were dismissed earlier this year due to a lack of evidence, but the DA is appealing the dismissals.

“To me, the whole essence of prosecutorial discretion is that we should focus on people who are actually dangerous, who pose a threat,” Montoya said. “It is these transnational gang members that we should be focusing on.”

“We should be trying to build larger cases off of (dangerous gang members), instead of random, individual families of migrants,” Montoya said.

Throughout the campaign, Montoya has also said targeting drunk drivers – and lobbying the Texas Legislature to allow El Paso County law enforcement to conduct sobriety road checkpoints – would be a better use of the DA’s time than prosecuting migrants on misdemeanors.

Hicks said his office has to prosecute migrants who break the law, and law enforcement gathered intelligence about foreign gang activity by arresting the migrants who were involved in the border fracas.

“If we catch people and we start putting them through the criminal justice system, that gives law enforcement that opportunity to start those intelligence briefings and intelligence conversations,” Hicks said.

Hicks also said he’s secured grant funding to re-establish the domestic violence prosecution unit that Rosales did away with. It includes money for a trial team chief, a senior trial attorney, two victim advocates and an investigator.

“I don’t believe that every domestic violence case should be prosecuted,” Hicks said, citing the major repercussions on offenders from a domestic violence conviction. “But I do believe every domestic violence case should be looked at, and it should be looked at by somebody who has specialized training in domestic violence.”

Hicks acknowledged the challenge he faces running as a Republican appointed by Abbott in a city that’s historically been a Democratic stronghold. But he said he doesn’t make decisions “on the basis of politics.”

“I don’t answer to the governor’s office. I don’t answer to the Attorney General’s Office. I decide everything in this office based on what is justice for the people of this community,” he said.

“I have 27 years as an attorney. (Montoya) has 11,” Hicks said. “My opponent has never supervised a single person in his entire career. I’ve been supervising people for 15 years. I’ve been responsible for hiring and firing people for 15 years.”

Montoya said it’s “important for your DA to be elected” rather than appointed. “Because you’re the one setting the priorities for this community’s criminal justice system,” he said.

“I do not think that the governor’s criminal justice feelings and this community’s align at all,” Montoya said. “This is not a community that supports Governor Abbott’s priorities.”