Bexar County, Texas Sheriff Javier Salazar has announced a criminal investigation into Venezuelan migrants being induced in San Antonio to board chartered planes and flown to Martha’s Vineyard. Florida Governor Ron DeSantis has taken credit for the stunt. The sheriff has said, “I believe there is some criminal activity involved here, but at present, we are trying to keep an open mind and we are going to investigate to find out and to determine what laws were broken if that does turn out to be the case.”

In this analysis, we look at the potential Texas state law charges that might apply. Our analysis may be a useful guide – for criminal investigators, press, potential whistleblowers or witnesses, the public and other stakeholders. We discuss what exactly might be investigated as a possible crime based on currently available information and what additional facts might be developed.

We first set out what we understand to be the relevant facts, drawing from public reports and a class action complaint filed in federal court in Massachusetts. We then turn to the potential charges and their elements, applying the law to the facts known at this time. Should further investigations or reports reveal additional or contradictory evidence, that could of course affect our analysis.

As discussed below, the conduct might violate multiple Texas criminal statutes, including unlawful restraint, exploitation of a child or elderly person, and certain fraud statutes, not to mention conspiracy and aiding and abetting. That said, the criminal investigation is at an early stage, facts are still being developed, and it is too soon to conclude that crimes were committed – or to rule that out.


In terms of those most directly involved in carrying out the scheme on the ground, certain as-yet-unidentified individuals (the “Perpetrators”) targeted at least 48 people who had recently fled Venezuela and taken up residence, with lawful immigration status, in San Antonio, Texas (“the Migrants”). The Perpetrators put into effect a crass political stunt in which they appear to have induced the Migrants, under false pretenses, to fly from Texas to Martha’s Vineyard, on September 14, 2022, where the Perpetrators then essentially stranded the immigrants.

The Migrants apparently surrendered themselves to immigration officials upon crossing the border. Complaint ¶ 1, Alianza Americas v. DeSantis, 22-cv-115500 (D. Mass Sept. 20, 2022), ECF No. 1 (“Compl.”). Many are reported to be seeking asylum.[1] They have active proceedings to determine their status and, pending such determination, are authorized to remain in the United States. Compl. ¶ 1.[2]

The Perpetrators, acting in concert with Florida state officials, frequented areas near a migrant resource center in San Antonio, and similar locations, and took steps to gain the trust of the Migrants. Compl. ¶ 28. (Separately, there are reports that one migrant was being paid to recruit other migrants.[3]) The Perpetrators cultivated the Migrants with McDonalds gift certificates and other “seemingly de minimis items.” Id. ¶¶ 4, 28. The Perpetrators also represented to the Migrants that if they “were willing to board airplanes to other states, they would receive employment, housing, educational opportunities, and other like assistance at their arrival.” Id. ¶ 29. The Migrants were also told that they would receive assistance in relation to their pending immigration proceedings on arrival at their destination. Id. ¶ 30. The Perpetrators also collected immigration paperwork, so they could confirm that the Migrants’ “immigration status met the ultimate ends of their scheme,” and told them that they would be taken to Boston or Washington, D.C. Id. ¶¶ 5, 32, 41, 59, 88.[4]

Over days, the Perpetrators “rounded up and sequestered the individual [Migrants] in hotel rooms while they gathered enough of them to fill two planes and carry out their scheme.” Id. ¶ 34. Thereafter, the Migrants were taken to a private airstrip in Bexar County. Id. ¶ 35. At some point prior to the flights’ departures, the Perpetrators presented the Migrants with a partially translated document that failed to translate into Spanish the text indicating that transportation would take them from Texas to Massachusetts, or any of a paragraph concerning liability. See id. ¶ 89. Additionally, the Migrants were apparently provided false information as to which authority they needed to notify of their change of address.[5]

The planes left from Texas, id. ¶ 35, and made at least two stops each, including one in Florida, which may simply have been for refueling, before arriving at Martha’s Vineyard.[6] While in the air, the Migrants were provided with “a shiny, red folder that included other official-looking materials,” including: a brochure—apparently not prepared by any Massachusetts agency, id. ¶ 39—“entitled ‘Massachusetts Refugee Benefits’ and instructions for how to change an address with U.S. Citizenship and Immigration Services (USCIS) … including USCIS Form AR-11, ‘Alien’s Change of Address Card,’” id. ¶ 37. The brochure included statements concerning the assistance ostensibly available after arrival in Massachusetts, and references to a Refugee Cash Assistance program and “targeted services for … employment.” Id.[7] During the flight the Migrants were told that they would be landing at Martha’s Vineyard, which was contrary to representations made prior to boarding. Id. ¶¶ 35, 41.

Among the Perpetrators was a woman who told the Migrants that her name was “Perla,” id. ¶¶ 23, 56, and a man who told them his name was “Emanuel,” id. ¶ 24; see also id. ¶ 25.

Specifically, “Perla” is alleged to have:[8]

  • asked the Migrants outside a migrant shelter in San Antonio if they needed help, and shared her phone number as a way for them to seek assistance. Id. ¶¶ 56, 71, 74, 87;
  • represented that she worked for “an ‘anonymous’ person who helped immigrants reach sanctuary states.” Id. ¶ 71;
  • requested copies of the Migrants’ immigration notices. Id. ¶¶ 57, 87;
  • represented to the Migrants that if they got on the arranged flight, they would be provided with housing, work, English classes, education, food, and assistance with immigration proceedings. Id. ¶¶ 59, 73, 91;
  • also represented that they would receive “expedited work permits” if they took the flight;[9]
  • represented to the Migrants that the flights would take them to Boston, Washington, D.C. or another “sanctuary state.” Id. ¶¶ 59, 88;
  • represented that people in such destinations were anticipating the Migrants’ arrival. Id. ¶ 72;
  • transported the Migrants to hotels. Id. ¶¶ 58, 73;
  • arranged a shuttle to take the Migrants to the airstrip. Id. ¶¶ 59, 76;
  • gathered a group at 7:00 a.m. to sign a document in order to receive a $10 McDonald’s gift card, without explaining the content of the only partially translated document (one part that was not translated was the “language specifying that the journey would take place from Texas to Massachusetts”). Id. ¶¶ 89–90;
  • provided the Migrants with a map bearing an “X” marking a refugee center, which was in fact a parking lot;[10] and
  • failed to respond to messages after the Migrants’ arrival in Martha’s Vineyard. Id. ¶ 93.

“Emanuel” is alleged to have:

  • frequented, with “Perla,” the area outside the shelter. Id. ¶ 71;
  • represented that he worked for “an ‘anonymous’ person who helped immigrants reach sanctuary states.” Id. ¶ 71;
  • represented that people in such destinations were anticipating the Migrants’ arrival. Id. ¶ 72;
  • represented to the Migrants that if they got on the arranged flight, they would be provided with housing, work, English classes, education, food, and assistance with immigration proceedings. Id. ¶¶ 59, 73, 91; and
  • transported the Migrants to hotels. Id. ¶¶ 58, 73.

None of the purported arrangements that the Migrants were told about had been made and, indeed, no notification of the Migrants’ forthcoming arrival had been given to any governmental authority or other organization that may have been able to provide the services. Id. ¶¶ 30, 43, 50. The Migrants were left stranded “in the dark, with nothing, on a tarmac on an island” and unable to reach the Perpetrators by phone. Id. ¶¶ 45, 46, 60, 76, 92. Perpetrators did not travel with the Migrants, instead “completely abandon[ing]” them, id. ¶ 44, and did not respond to their calls or messages once they arrived in Martha’s Vineyard, id. ¶ 77. Some had a forthcoming court date in Texas relating to their immigration proceedings and now are concerned about being absent. Id. ¶¶ 54, 61

Florida Governor Ron DeSantis is alleged to have “orchestrated” the scheme, id. ¶ 27, and, indeed, has taken credit for it, id. ¶ 19. Governor DeSantis claims he arranged for the flights.[11] His office confirmed that the flights were “part of the state’s relocation program to transport illegal immigrants to sanctuary destinations.”[12] Apparently, the people flown to Martha’s Vineyard were chosen on the basis of their wanting to relocate to Florida.[13] DeSantis stated that he funded the scheme using $12 million appropriated to the Florida Department of Transportation and that “he and his associates will continue to undertake similar transport until those funds are exhausted.” Id. ¶ 49. He also said: “We are not a sanctuary state, and we will gladly facilitate the transport of illegal immigrants to sanctuary jurisdictions.” Id. ¶ 19. Florida State budget records apparently indicate that Florida’s Department of Transportation paid $615,000 to a Florida-based aviation company called “Vertol Systems” (which apparently operates as Ultimate Air Shuttle) less than a week before the flights.[14] It is alleged that this payment was for the two chartered planes to Martha’s Vineyard. Id. ¶ 5.[15]

There are also reports that during a discussion with Republican Party donors, Governor DeSantis suggested that he might begin moving migrants from Texas to, among other places, Martha’s Vineyard.[16]

DeSantis denies any wrongdoing, describing the program as “of huge benefit” to the Migrants.[17] An unnamed administration official also asserted that no promises were made about jobs, and that the Migrants were given “multiple opportunities” not to take the flight.[18] He claims they were asked to sign a waiver, that it was obvious where they were going, and that it was “all voluntary.”[19] Moreover, a spokesperson from his office suggested that “Immigrants have been more than willing to leave Bexar County after being abandoned, homeless, and ‘left to fend for themselves.’”[20]

After conduct used to carry out the operation became known, DeSantis stated, “These are just the beginning efforts.” “We’ve got an infrastructure in place now. There’s going to be a lot more that’s happening,” he said.[21]


Texas’s territorial jurisdiction extends to offenses “that a person commits by his own conduct or the conduct of another for which he is criminally responsible if,” among others, “either the conduct or a result that is an element of the offense occurs inside this state; … [or] the conduct outside this state constitutes a conspiracy to commit an offense inside this state, and an act in furtherance of the conspiracy occurs inside this state. …” Tex. Penal Code Ann. § 1.04(a) (West 2021). The state “includes the land and water and the air space above the land and water over which this state has power to define offenses.” Id. § 1.04(d).

Bexar County Sheriff Javier Salazar has county-wide jurisdiction to investigate and arrest people for crimes. See Tex. Code Crim. Proc. Ann. art. 2.17 (West 2021) (“Each sheriff shall be a conservator of the peace in his county, and shall arrest all offenders against the laws of the State, in his view or hearing, and take them before the proper court for examination or trial.”); see also id. art. 2.13(a) (West 2021) (“It is the duty of every peace officer to preserve the peace within the officer’s jurisdiction. To effect this purpose, the officer shall use all lawful means.”). Bexar County includes San Antonio city and Kelly Field, from which the chartered planes took off.[22]

Potential Charges Against Primary Actors

The potential charges outlined in this section would in the first instance apply to individuals who were physically present in San Antonio—at least “Perla” and “Emanuel”–if the evidence supports it and they are able to be identified. Whether charges could be brought against Governor DeSantis and others would turn on whether there is sufficient proof of each element against them, i.e. direct involvement. In addition, at least Governor DeSantis and possibly others could be liable under conspiracy or aiding-and-abetting theories, again depending on how the evidence develops.[23]

Unlawful Restraint

It is an offense to “intentionally or knowingly restrain[] another person.” Tex. Penal Code Ann. § 20.02(a) (West 2021). “Restrain” means to “restrict a person’s movements without consent, so as to interfere substantially with the person’s liberty, by moving the person from one place to another or by confining the person.” Id. § 20.01(1). And restraint is considered to be “without consent” if it is accomplished by “force, intimidation, or deception,” in the case of adult victims. Id. § 20.01(1)(A). While the interference with liberty must be “substantial,” there is no specific time or distance requirement. See Hines v. State, 75 S.W.3d 444, 448 (Tex. Crim. App. 2002).

Though this is not the typical case for an unlawful restraint charge, the plain language of the statute fits the conduct as we understand it. The Perpetrators moved the Migrants from Texas to Massachusetts through deception. Had the Migrants understood the truth—that they were induced to board the plane with false promises as to destination and assistance, and neither assistance nor employment would be forthcoming from those who tricked them upon arrival in Martha’s Vineyard—they likely would not have boarded the flights. Once aboard, the Migrants could not deplane (particularly, of course, during flight) or ask that the plane chart a new course—which they of course had no reason to do because the deception continued in flight: the Migrants were not told until they were in the air that they would be landing in Martha’s Vineyard, and only upon arrival became aware that the promised assistance had not been arranged.[24] Once they arrived in Martha’s Vineyard, the Migrants did not themselves have the means to relocate.

This restriction on movement substantially interfered with the Migrants’ liberty in several respects. It interfered with their ability to attend scheduled hearings relating to their immigration status, which were set to take place in Texas thousands of miles away. See, e.g., Compl. ¶¶ 54, 61.[25] The movement also interfered with the Migrants’ ability to seek gainful employment. Not only were they taken away from potential opportunities elsewhere (if such opportunities could be demonstrated), but they were also transported to a destination known as a seasonal community, at the end of summer, when there were few if any employment opportunities available and a dearth of affordable housing.[26]

As noted above, this restraint appears to have been without consent because it occurred by deception. Specifically, the Migrants were lured onto the plane as a result of being falsely told that: they would be taken to Washington D.C. or Boston, when in fact they were taken to Martha’s Vineyard; that persons at these destinations were anticipating their arrival, when in fact no one was so aware; that on arrival they would be provided with assistance including housing, food, employment (and in some cases, expedited work permits), education, and assistance with immigration proceedings, when no assistance had been arranged; and that they were being aided by someone whose role it was to assist migrants, when in fact they held no such role.

Even if it were somehow established that the Migrants were transported to the airstrip and boarded the plane voluntarily, initial willingness does not prevent restraint from later commencing. See, e.g., Rodriguez v. State, 730 S.W.2d 75, 79 (Tex. App. 1987) (citations omitted) (“We do not consider the fact that the victim initially accompanied appellant and Cordona voluntarily as precluding the possibility that a kidnapping subsequently occurred. The kidnapping began when the victim demanded to be taken to her home and appellant refused. Her presence, positioned between the two abductors, in the cab of the fast-moving truck then became confinement, and a substantial interference with her liberty.”); Johnson v. State, No. 12-21-00215-CR, 2022 WL 3452262, at *5 (Tex. App. Aug. 17, 2022) (“[T]he fact that a victim initially accompanies a defendant voluntarily into a hotel room does not preclude the possibility that kidnapping subsequently occurred inside the room.”). So, even if it were somehow shown that the Migrants voluntarily and under no deception agreed to board the plane, that does not prevent a showing that restraint later commenced.

While restraint of adults is considered to occur “without consent” if it is accomplished by “force, intimidation, or deception,” Tex. Penal Code Ann. § 20.01(1)(A) (West 2021), restraint of children is “without consent” if it is accomplished “by any means, including acquiescence of the victim” if the victim is a child, and (i) the child is under 14 and the child’s parent or guardian “has not acquiesced in the movement or confinement”; or (ii) the child is older than 14 but younger than 17, is taken “outside of the state and outside a 120-mile radius from the [their residence],” and their parent or guardian has not acquiesced in the movement. Id. § 20.01(1)(B). We understand that at least some children were on the charter planes.[27] We are not aware of any children who were transported to Martha’s Vineyard without a parent or guardian. That said, if the parent’s own restraint was “without consent” then they could not have acquiesced in the movement of any of their children who traveled with them.

Importantly, a violation of this statute is a Class A misdemeanor except where “the person restrained was a child younger than 17 years of age,” in which case it is a felony. The restraint of children therefore, rightly, increases the potential penalty here.

Exploitation of Child, Elderly Individual, or Disabled Individual

It is an offense to “intentionally, knowingly, or recklessly cause[] the exploitation of a child, elderly individual, or disabled individual.” Tex. Penal Code Ann. § 32.53(b) (West 2021). “Exploitation” means “the illegal or improper use of a child, elderly individual, or disabled individual or of the resources of a child, elderly individual, or disabled individual for monetary or personal benefit, profit, or gain.” Id. § 32.53(a)(2).

We understand that children and the elderly were among those flown to Martha’s Vineyard.[28] DeSantis arguably improperly used these children and elderly persons for his campaign’s monetary gain and to gain political support. With respect to the former, there is at least one report that DeSantis referred to his intention to transport migrants to Martha’s Vineyard at a donor party just days before the event.[29] And many, including DeSantis himself, have indicated that the program was intended to convey DeSantis’s stance on immigration policies.[30] The exposure this stunt gained would, in turn, have benefited him and his campaign.

Whether a court would find “illegal or improper use of a child, elderly individual, or disabled individual… for monetary or personal benefit, profit, or gain” by DeSantis here depends on the development of the evidence. “Use” is not defined in the statute, and we are not aware of any Texas case law expressly discussing the scope of the term for these purposes. Examples of exploitation have included: convincing an elderly person that their roof needed repair, and then charging several thousand dollars for the work when the market value was only a few hundred, Joles v. State, No. 05-19-01324-CR, 2020 WL 7053504, at *1 (Tex. App. Dec. 2, 2020) (affirming judgment of conviction); and taking checks from an elderly family member’s account to then fraudulently cash them on the family member’s account, United States v. Brockman, No. 1:08-CR-009-P, 2015 WL 4620148, at *2 (N.D. Tex. Aug. 3, 2015) (discussing defendant’s arrest for this offense in considering a motion to revoke defendant’s term of supervised release).

Smuggling and Trafficking of Persons

Smuggling and trafficking have both received considerable attention from news media as potentially available criminal charges here.[31] It is not clear that there is a basis on the currently known facts for either of these charges under Texas law, although the investigation is just beginning and the facts could develop so as to substantiate these charges.

With respect to smuggling, conduct rising to the level of an offense includes knowingly “us[ing] a motor vehicle, aircraft, watercraft, or other means of conveyance to transport an individual with the intent to (A) conceal the individual from a peace officer or special investigator ….” Tex. Penal Code Ann. § 20.05(a)(1)(A) (West 2021). We do not know of any facts that suggest that any relevant member of law enforcement was aware of the intended transportation in advance of it taking place. However, in the event that there were facts establishing that this was the case and that flying the Migrants away from San Antonio was done with the intention of concealing them from relevant authorities, circumstances might be different. The other prongs of smuggling would not be applicable here. They include: using the same transport methods just listed with intent to flee from a person attempting to arrest or detain them, id. § 20.05(a)(1)(B); encouraging or inducing a person to remain in the United States by protecting them from detection, id. § 20.05(a)(2); and “assisting, guiding or directing” two or more persons to “enter or remain on agricultural land” without the owner’s consent, id. § 20.05(a)(3).

In the case of trafficking of persons, to establish an offence, the trafficking must be: carried out “with the intent that the trafficked person engage in forced labor or services,” id. §§ 20A.02(a)(1) (person), 20A.02(a)(5) (child); connected to causing, through “force fraud or coercion,” the trafficked person to engage in prohibited conduct involving prostitution, id. § 20A.02(a)(3); or connected to causing, by any means, a child to engage in or become the victim of conduct prohibited by various prostitution and sexual abuse provisions, id. § 20A.02(a)(7). It is also an offense to “receive a benefit from participating in a venture” involving the activities just described. Id. §§ 20A.02(a)(2), (4), (6), (8). We are not aware of any facts suggesting that the Perpetrators intended for the Migrants to engage in forced labor or services that would support any of the activities covered by this provision.

Fraudulent Securing of Document Execution

It is an offense if a person, “with the intent to defraud or harm any person: (1) causes another person, without that person’s effective consent, to sign or execute any document affecting property or service or the pecuniary interest of any person.” Tex. Penal Code Ann. § 32.46(a)(1) (West 2021).

Consent is not effective if, relevantly, it is “induced by deception or coercion.” Id. § 32.46(d)(3)(A). And “deception” is defined to mean, relevantly, “(A) creating or confirming by words or conduct a false impression of law or fact that is likely to affect the judgment of another in the transaction, and that the actor does not believe to be true,” “(C) preventing another from acquiring information likely to affect his judgment in the transaction,” or “(E) promising performance that is likely to affect the judgment of another in the transaction and that the actor does not intend to perform or knows will not be performed” (except that failure to perform alone is insufficient proof). Id. §§ 32.46(d)(1), 31.01(1)(A), (C), (E).

A charge under this provision would be based on the documents that the Migrants signed prior to boarding the plane supposedly containing the details of the transportation that would occur.

The likelihood of establishing this offense will turn, in part, on whether the release document can be classified as affecting “the service or the pecuniary interest of any person.” There is a sufficiently strong argument that it affects both. This document affected the Migrants’ service interest—which includes, relevantly, “labor and professional service,” Tex. Penal Code Ann. § 32.01(a)(3)(A) (West 2021)—insofar as it took them away from potential employment opportunities in San Antonio or surrounding areas (if this could be shown).

And it was also a document affecting their pecuniary interest for much the same reasons. The “pecuniary interest” requirement is met “if the evidence allows a reasonable factfinder to conclude the alleged victim had a financial stake in the matter.” Walker v. State, No. 09-20-00011-CR, 2022 WL 385186, at *11 (Tex. App. Feb. 9, 2022); see also Goldstein v. State, 803 S.W.2d 777, 791 (Tex. App. 1991) (“In the present case, the jury could determine that appellant signed the affidavit of loss knowing the repairs had not been completed and that NorthPark Savings had a financial interest in the repair of the mortgaged condominium.”). Such effect need not be “direct.” Bennett v. Grant, 525 S.W.3d 642, 649–50 (Tex. 2017) (observing that “the statute, however, does not by its terms require the document in question to ‘directly’ affect a person’s pecuniary interest’ and finding that “there is more than a mere scintilla of evidence that Grant’s pecuniary interest was affected by the indictment. Grant was required to post a $10,000 bond immediately to avoid imprisonment and to hire attorneys to quash the indictment.”); Fisher v. State, 803 S.W.2d 828, 831 (Tex. App. 1991) (finding the issuing of a citation was a document affecting a person’s pecuniary interest because it tolled the running of the statute of limitations for an initiated lawsuit, which would have otherwise made a complete defense to the suit available). The relevant pecuniary interest here included the Migrants’ future potential earnings (as well as their present earnings, if any) and potentially personal belongings or property left behind.

Agreement—through the Migrants’ signing of the document—was likely induced by deception, and therefore not effective consent, under several of the grounds we listed earlier, including: creating the false impression that they would be transported to a destination other than Massachusetts; preventing them from learning the nature or destination of the journey as a result of critical language in the document not being translated into Spanish; and promising assistance in the form of housing, food, education, employment, and help with immigration proceedings, that did not exist and therefore would not be performed.

With respect to intention to harm or defraud, this would require establishing that the intention behind the execution of the document—securing the ability to transport the individuals to Martha’s Vineyard—amounted to a form of harm or defrauding the Migrants. At minimum, there would be a solid argument that the harm stems from the deprivation of liberty as discussed previously.

The offenses range from Class C misdemeanors to felonies of the first degree, depending on the value of the property, service, or pecuniary interest. See Tex. Penal Code Ann. § 32.46(b) (West 2021).

Fraudulent Use or Possession of Identifying Information

A person commits an offense if the person “with the intent to harm or defraud another, obtains, possesses, transfers, or uses an item of,” relevantly, “(1) identifying information of another person without the other person’s consent or effective consent.” See Tex. Penal Code Ann. § 32.51(b) (West 2021). “Identifying information” means “information that alone or in conjunction with other information identifies a person, including a person’s: (A) name and date of birth.” Id. § 32.51(a)(1) (West 2021).

A charge under this provision would be based on the individuals’ collecting immigration notices or other paperwork from the Migrants, which we presume contain names and dates of birth.

With respect to whether the Migrants consented to the Perpetrators obtaining or possessing their identifying information, there are several facts that could demonstrate a lack of consent or effective consent. Among these would be the fact that the Migrants shared the immigration notices containing such information because they were told that this information would be used to relocate them to a place where they would be provided with certain types of assistance. As such, the Migrants arguably handed over their identifying information for use for one purpose, and did not consent to its use to assess their eligibility for the relocation program.

Conversely, it may be argued that the element of use is not established at all, on the grounds that it was not the names and dates of birth that were being used but, rather, the immigration status of the Migrants. See Compl. ¶ 32 (the individuals “collected copies of the class members’ immigration paperwork so they could confirm that their immigration status met the ultimate ends of their scheme. If the class members’ paperwork fit the bill, the [individuals] engaged in further acts to lure them into being objects of the … political agenda”).

With respect to acting with intent to defraud or harm the Migrants, it could be argued that the intention behind obtaining the identifying information and assessing their eligibility was tied to the ultimate end goal of the relocation scheme—to lure the Migrants, under false pretenses, to board a plane out of the state. However, here, it may also be possible to rely on the presumption in § 32.51(b-1), which provides that “the actor is presumed to have the intent to harm or defraud another if the actor possesses: (1) the identifying information of three or more other persons.” That threshold appears to be easily met. And while the presumption does not apply “to a business or other commercial entity or a government agency that is engaged in a business activity or governmental function that does not violate a penal law of this state,” Tex. Penal Code Ann. § 32.51(b-2) (West 2021), it would be difficult to argue that such activity or function occurred here—as the surrounding discussion demonstrates, there would be strong arguments that the relocation violated state penal law.

The offenses range from state jail felony to felony in the first degree, depending on the number of items obtained, possessed, transferred, or used. See Tex. Penal Code Ann. § 32.51(c) (West 2021). It is a second degree felony “if the number of items obtained, possessed, transferred, or used is 10 or more but less than 50” and a first degree felony if more than 50.

Potential Charges for Actions Taken by Others

Assuming that there are facts to ground the laying of charges for at least one of the offenses above against “Perla” or “Emanuel,” other persons may be liable under conspiracy or aiding-and-abetting even if they are not found to be liable as primary actors. Depending on the development of the facts, that could include Governor DeSantis and the Secretary of the Florida Department of Transportation, Jared W. Perdue. We emphasize that the investigation is just beginning and it is too soon to make a determination of primary or secondary liability.

Criminal Responsibility for the Conduct of Another

A person “is criminally responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or by both.” Tex. Penal Code Ann. § 7.01 (West 2021). An actor is “criminally responsible for an offense committed by the conduct of another” if, as relevant here, “acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense.” Id. § 7.02(a)(2). This provision allows the state to hold an actor criminally responsible even when he is not the “principal actor.” See Fricks v. State, No. 13-20-00428-CR, 2022 WL 1669063, at *3 (Tex. App. May 26, 2022).

In determining whether a person is a party, “the factfinder may rely on ‘events that took place before, during, or after the commission of the offense.’” Delagarza v. State, 635 S.W.3d 716, 724 (Tex. App. 2021) (quoting Cary v. State, 507 S.W.3d 750, 758 (Tex. Crim. App. 2016)). Courts may also rely on circumstantial evidence, and “[e]ach fact need not point directly to the guilt of the defendant, as long as the cumulative effect of the facts are sufficient to support the conviction under the law of parties.” Gross v. State, 380 S.W.3d 181, 186 (Tex. Crim. App. 2012).

DeSantis has expressly taken credit for flying the Migrants to Martha’s Vineyard, in statements to donors before the flights, and on his own and through his office subsequent to the flights. On the basis of those public admissions, it seems likely that he directed the relocation program to take place. But, for him to be party to the actions of the Perpetrators as a criminal law matter, it will be necessary to establish that such a direction was given with the “intent to promote or assist the commission” of one or more of the offenses outlined above. Such an intention includes, for example, that the Migrants be deceived about where they were going or what assistance they would receive on arrival, not just the intention that they be flown to Martha’s Vineyard.

Additionally, persons involved in funding the relocation may also be liable. The state appropriated the money that funded these flights to the Florida Department of Transportation, of which Jared W. Perdue is Secretary. Florida State budget records also apparently indicate that Florida’s Department of Transportation paid $615,000 to a Florida-based aviation company called “Vertol Systems” in the days leading up to the flights. Perdue might be responsible if he authorized the payment for the charter flights. However, again, it would need to be shown that, in doing so, he intended to promote or assist the commission of the offenses, not just the flights. If such intent were found, the provision of funds for the flights would likely constitute a form of aiding or abetting. If there is evidence that DeSantis directed Perdue or others to use the funds for these flights, again with the requisite intent shown, then this could be another avenue to proving DeSantis was party to these offenses.

Criminal Conspiracy

A person “commits criminal conspiracy if, with intent that a felony be committed: (1) he agrees with one or more persons that they or one or more of them engage in conduct that would constitute the offense; and (2) he or one or more of them performs an overt act in pursuance of the agreement.” Tex. Penal Code Ann. § 15.02(a) (West 2021). An “agreement constituting conspiracy may be inferred from acts of the parties.” Id. § 15.02(b); see also Gittens v. State, 560 S.W.3d 725, 735 (Tex. App. 2018) (internal quotation marks omitted) (“Since an agreement between parties to act together in common design can seldom be proven by words, the State often must rely on the actions of the parties, shown by direct or circumstantial evidence, to establish an understanding or a common design to commit the offense.”). It is not necessary to show that the parties agreed to a “common means” to accomplish the object of their conspiracy. See Smith v. State, 17 S.W. 552, 555 (Tex. App. 1886). The overt act “need not be criminal in itself.” Barrera v. State, 321 S.W.3d 137, 154 (Tex. App. 2010).

Critically, to establish this offense, it would need to be shown that DeSantis agreed in some way with the Perpetrators (or any other actors) that they would engage in the conduct that would constitute the offenses. Even if DeSantis claimed he did not endorse the exact tactics used on the ground, this would be no defense, as co-conspirators need not agree on the precise means used. It is important to note that this offense is limited to agreements to commit felonies rather than misdemeanors, so may not extend to all of the offenses set out above. Also as discussed above, it would not be enough to show that there was simply an agreement to transport the Migrants from Texas to Martha’s Vineyard; instead, the agreement would need to be directed to, for example, the acts of deception that led to the Migrants being lured to board the planes under false pretenses.

As noted above, there are facts establishing that DeSantis took credit for the chartering of the planes. DeSantis also made a statement referring to “contracted” people who gave the release forms to the Migrants, presumably referring to employees under contract.[32] It is unknown if any of this documentation referred expressly to conduct that would amount to criminal activity. Reviewing the documentation could assist, along with other information, to show the existence of an agreement to engage in the conduct amounting to one or more of the offenses. But an express agreement is not required and agreement can be inferred from the parties’ actions.

There are multiple actions that are discussed above that would establish the overt act prong, including the tactics described to recruit the Migrants, placing them in hotels, procuring signatures on release forms, and transporting the Migrants to the airstrip before loading them onto the plane.


The treatment of the Migrants who were transported from Texas to Martha’s Vineyard has gripped the nation. There can be little doubt that it was wrong. There are also serious questions about whether it was legal. Some of those questions are being addressed in civil litigation. Others are under investigation criminally. Federal authorities are also reported to be considering the matter. We do not know the outcome of any of those proceedings, but we hope this analysis will be useful in at least the Bexar County law enforcement review and perhaps more broadly. We emphasize again that as far as we are aware, no determination has been made that the Texas criminal law has been violated. But the allegations are serious ones which merit close attention. We have attempted to contribute to that need for close attention in this review.

———- Notes ———-

  1. See Scott Simon & Simon Rios, Migrants sent to Martha’s Vineyard are being rehoused in Cape Cod, NPR (Sept. 17, 2022), (quoting Simon Rios, a WBUR reporter who apparently spoke to several migrants as having said: “And after presenting themselves to border officials in Texas, where they sought asylum, they were released and ended up in San Antonio.”); Yacob Reyes, Clarifying the nuances in immigration law after DeSantis sent migrants to Martha’s Vineyard, PolitiFact (Sep. 23, 2022) (“Most of the migrants received humanitarian parole after entering the U.S. and plan to apply for asylum, lawyers representing the migrants told PolitiFact. Humanitarian parole allows people to remain in the U.S. temporarily for a compelling emergency. In general, the parole can be granted for any ‘urgent humanitarian reasons,’ including protection from targeted or individualized harm. The lawsuit said some of the migrants fled to the U.S. to protect themselves and their families from ‘state-sponsored violence.’ ‘We are still ascertaining the circumstances surrounding parole,’ said Iván Espinoza-Madrigal, executive director of Lawyers for Civil Rights, which represents 30 of the migrants. ‘I suspect the designation was made based on their hardship coupled with their nationality: the crisis in Venezuela is well-known and documented.’”)
  2. See generally Miriam Jordan & Remy Tumin, ‘I Ended Up on This Little Island’: Migrants Land in Political Drama, N.Y. Times (Sep. 15, 2022), (“Venezuelan migrants surrender to border officials once they cross into the United States, and later request asylum. Since the United States has no diplomatic relations with their home country, they are generally allowed to stay, rather than face expedited deportation like many migrants from Mexico and Central America. After reaching their destinations, the migrants can remain in the United States for months or even years while they await the outcome of their asylum cases, and they are allowed to work while they pursue asylum claims. But they must comply with instructions to appear in court or check in with immigration authorities, or they jeopardize their cases.”)
  3. Chloe Folmar, Texas sheriff opens probe into DeSantis’s migrant flight to Martha’s Vineyard, The Hill (Sep. 19, 2022), (“According to [Bexar County Sheriff Javier] Salazar, one Venezuelan migrant was paid to recruit the others, who were allegedly promised work and other benefits, before the group was flown first to Florida and then to Massachusetts.”).
  4. See also Eve Zuckoff, One migrant says he felt ‘deceived’ by events that led to his arrival on Martha’s Vineyard, GBH News (Sep. 16, 2022), (“Plaza said he was transported under false pretenses and was told he’d be going to either Missouri, Washington or Oregon.”); Eve Zuckoff et al., Migrants on Martha’s Vineyard flight say they were told they were going to Boston, NPR (Sep. 15, 2022), (“A number of migrants told NPR their flight originated in San Antonio, and that they were being transported to Boston, not Martha’s Vineyard.”).
  5. George Brennan, Attorney: Migrants were kidnapped, MV Times (Sep. 15, 2022), (Reporting that Rachel Self, an immigration attorney, had said: “They were provided with a cartoonishly simple map of Martha’s Vineyard and the United States, and a brief brochure containing snippets from the Commonwealth of Massachusetts website—and instructions to report their change of address to USCIS when they relocated …. This is especially troubling, as anyone with even the most basic understanding of immigration proceedings knows that USCIS was not the agency with whom the migrants would have to record their address, and has nothing to do with their cases in any way.”).
  6. See Gwenn Friss & Denise Coffey, Migrants flown to Martha’s Vineyard may move to Cape Cod military base: What we know, Cape Cod Times (Sep. 14, 2022), (“The planes took off from Kelly Field in San Antonio, Texas, then went to Bob Sikes Airport in Crestview, Florida, Freeman said. From there, one plane went to Spartanburg, South Carolina, and then to Martha’s Vineyard. The other plane went to Charlotte, North Carolina, and then to Martha’s Vineyard.”); Kimber Collins, Okaloosa Co. addresses report of migrant flights stopping in Crestview, WKRG News (Sep. 21, 2022), (“[Okaloosa] county confirmed two aircrafts operated by Vetrol and Ultimate Air Shuttle/Ultimate Jet Charters did stop at CEW [Bob Sikes Airport in Crestview, Florida] for fuel.”); Siladitya Ray & Brian Bushard, DeSantis Claims Credit As Dozens Of Venezuelan Migrants Arrive On Martha’s Vineyard, Forbes (Sep. 15, 2022), (“The two flights, both charter planes operated by Ultimate Air, made several refueling stops on their way to Martha’s Vineyard, according to the flight tracking website FlightAware.”).
  7. See also the brochures themselves, available at;
  8. See also Miriam Jordan & Remy Tumin, ‘I Ended Up on This Little Island’: Migrants Land in Political Drama, N.Y. Times (Sep. 15, 2022),; Brian Bushard, Blonde Mystery Woman ‘Perla’ At Center Of Martha’s Vineyard Migrant Controversy, Forbes (Sep. 17, 2022),
  9. Siladitya Ray & Brian Bushard, DeSantis Claims Credit As Dozens Of Venezuelan Migrants Arrive On Martha’s Vineyard, Forbes (Sep. 15, 2022),
  10. Carmen Sesin & Tim Stelloh, Texas sheriff opens criminal investigation into Martha’s Vineyard migrant trips, NBC News (Sep. 19, 2022), (President of League of United Latin American Citizens, Domingo García, “who spoke with about a dozen migrants on Martha’s Vineyard last week, said Monday that ‘Perla’ gave them a map with an ‘X,’ marking a refugee center, which ended up being an empty parking lot.”)
  11. Jason Hanna et al., The migrants sent to Martha’s Vineyard have been voluntarily taken to a military base for support, officials say, CNN (Sep. 16, 2022), (“Though Florida’s governor says he arranged for the flights, the migrants had been in Texas — not Florida.”).
  12. Jessica Chasmar, Ron DeSantis sends two planes of illegal immigrants to Martha’s Vineyard, Fox News (Sep. 14, 2022), (“‘Yes, Florida can confirm the two planes with illegal immigrants that arrived in Martha’s Vineyard today were part of the state’s relocation program to transport illegal immigrants to sanctuary destinations,’ the governor’s communications director, Taryn Fenske, told Fox News Digital.”).
  13. Valerie Crowder, Flying migrants to Massachusetts was political, critics say. But was it legal?, NPR (Sep. 18, 2022), (“DeSantis said migrants were identified in Texas as wanting to relocate to Florida before they signed release forms to go to Massachusetts. If releases were signed, it’s unclear whether it was true consent.”).
  14. Jason Hanna et al., The migrants sent to Martha’s Vineyard have been voluntarily taken to a military base for support, officials say, CNN (Sep. 16, 2022), (“State budget records show six days before the migrants were flown to Massachusetts, Florida’s Department of Transportation paid $615,000 to Destin, Florida-based aviation company Vertol Systems as part of the governor’s program to relocate migrants.”).
  15. See also Sissi Cao, Florida Governor DeSantis May Be Sending a Migrant Flight To Biden’s Delaware Home, Jet Trackers Show, Observer (Sep. 20, 2022), (“Public records show Florida’s Department of Transportation on Sept. 19 made a $950,000 payment to Vertol Systems Company, the same charter company that flew migrants to Martha’s Vineyard last week. Vertol operates under the name “Ultimate Air Shuttle” with the Federal Aviation Administration. The state of Florida paid Vertol $615,000 on Sept. 8 to arrange the flight to Martha’s Vineyard, according to public records.”)
  16. See Josh Dawsey, Michael Scherer & Isaac Arnsdorf, DeSantis Gave GOP Donors a Glimpse of Plans for Migrant Flights, Wash. Post (Sept. 15, 2022), (quoting DeSantis as saying, “I do have this money. I want to be helpful. Maybe we will go to Texas and help. Maybe we’ll send to Chicago, Hollywood, Martha’s Vineyard. Who knows?”); Zac Anderson, Florida Gov. Ron DeSantis Has Been Telegraphing Martha’s Vineyard Migrant Flights for Months, Tallahassee Democrat (Sept. 16, 2022), (“The governor mentioned Martha’s Vineyard during a press conference last December to push the Legislature for funding to relocate migrants. ‘It’s somewhat tongue in cheek, but it is true,’ DeSantis said. ‘If you sent [them] to Delaware or Martha’s Vineyard or some of these places, that border would be secure the next day.’”).
  17. Andrew Atterbury, Texas sheriff investigating DeSantis’ role in flying migrants to Martha’s Vineyard, Politico (Sep. 19, 2022) (“The action announced by the Texas sheriff came hours after DeSantis told a conservative radio host that the migrants who his administration transported to Martha’s Vineyard were ‘homeless.’ ‘This was a huge benefit to them,’ DeSantis said to Erick Erickson, claiming that some of those who wound up on the flight have written the vendor that transported them and thanked them.”).
  18. Andrew Atterbury, Texas sheriff investigating DeSantis’ role in flying migrants to Martha’s Vineyard, Politico (Sep. 19, 2022),; Jonathan Chait, DeSantis’s Reverse Freedom Ride Allegedly Violated Law in Two States, N.Y. Mag. (Sep. 2022), (“DeSantis claims none of the migrants were promised jobs.”).
  19. Mark Robinson, DeSantis: Florida will keep relocating migrants with state funds, Axios (Sep. 17, 2022),
  20. Chloe Folmar, Texas sheriff opens probe into DeSantis’s migrant flight to Martha’s Vineyard, The Hill (Sep. 19, 2022), (quoting communications director Taryn Fenske).
  21. Steve Contorno, DeSantis vows Florida will transport more migrants from border to other states, CNN (Sept. 16, 2022),
  22. See Waylon Cunningham, Here’s how flights out of Kelly Field, a military airfield in San Antonio, got caught up in a political stunt, San Antonio Report (Sep. 16, 2022),
  23. See Part IV infra.
  24. Charges of unlawful restraint might also be considered based on the time the Migrants spent in the hotel (confinement) and/or in the shuttle (movement) being transported to the airstrip. While each was also likely procured by deception, at least in the former case it is not clear that there are facts establishing an inability to leave, or any substantial interference with liberty.
  25. See also Bianca Padro Ocasio & Michael Wilner, Were migrants sent to Martha’s Vineyard given ‘fake addresses’ by DHS? Agency responds, Miami Herald (Sep. 21, 2022), (discussing allegations that the Migrants had been assigned addresses all over the country, and indicating, according to DHS officials, “[w]hen migrants cross the border and enter a processing center . . . they fill out a digital ‘notice to appear’ form with the assistance of an agent, and print it out with their approval of the address. Migrants are asked if they have somewhere specific to go, and if they do not, are assigned a random location for their court appearance.”).
  26. Remy Tumin & Eliza Fawcett, Florida Flies 2 Planeloads of Migrants to Martha’s Vineyard, N.Y. Times (Sept. 14, 2022), (“The migrants are also arriving just at the end of the summer season, when seasonal work has ended. ‘There are literally no jobs in the winter, and there is no affordable housing on Martha’s Vineyard,’ [Barbara Rush, the warden a local church] said. ‘The bulk of people that work a lower- to middle-income job live off island and commute.’”).
  27. See, e.g., Nina Lakhani, Attorneys for ‘duped’ migrants flown to Martha’s Vineyard call for criminal investigation, The Guardian (Sep. 18, 2022), (“Those flown to the holiday island included women and children as young as two years old.”); Critics say GOP is “using children as political pawns” after migrants unexpectedly flown to Martha’s Vineyard, CBS News, (Sep. 15, 2022), (“Volunteers on Martha’s Vineyard in Massachusetts found themselves scrambling to find shelter, food, water and other services to accommodate the unforeseen arrival of 50 migrants, including the elderly and children, who were flown there Wednesday as part of what Florida Gov. Ron DeSantis calls a relocation program.”).
  28. See Critics say GOP is “using children as political pawns” after migrants unexpectedly flown to Martha’s Vineyard, CBS News, (Sep. 15, 2022) (“Volunteers on Martha’s Vineyard in Massachusetts found themselves scrambling to find shelter, food, water and other services to accommodate the unforeseen arrival of 50 migrants, including the elderly and children, who were flown there Wednesday as part of what Florida Gov. Ron DeSantis calls a relocation program.”).
  29. See Josh Dawsey, Michael Scherer, & Isaac Arnsdor, DeSantis gave GOP donors a glimpse of plans for migrant flights, Wash. Post (Sep. 15, 2022),
  30. See, e.g., Mark Moore, DeSantis Rips Martha’s Vineyard Lawsuit, Says Biden Treated Migrants ‘Horribly,’ N.Y. Post (Sept. 21, 2022), (recapping a news conference in which DeSantis described his plan as based in his beliefs that “the border should be secured, and we want to have Biden reinstitute policies like ‘Remain in Mexico’” and “if you believe in open borders, and this is sanctuary jurisdictions that should have to bear the brunt of the open borders); Blake Hounshell, The Political Calculations Behind DeSantis’s Migrant Flights North, N.Y. Times (Sept. 15, 2022), (describing the political gain DeSantis sought with this stunt).
  31. See, e.g., Valerie Crowder, Flying migrants to Massachusetts was political, critics say. But was it legal?, NPR (Sept. 18, 2022), (quoting an immigration attorney as saying, in reference to the promise of employment, “An enticement like that, regardless of whether you sign a waiver, is fraud and that is part of the definition of human trafficking”); Zach Schonfeld, Massachusetts state lawmaker requests federal human trafficking probe over DeSantis migrant move, The Hill (Sept. 19, 2022),; Brett Samuels, White House compares DeSantis and Abbott actions to human smuggling, The Hill (Sept. 16, 2022),
  32. Valerie Crowder, Flying migrants to Massachusetts was political, critics say. But was it legal?, NPR (Sept. 18, 2022), (“DeSantis disputes claims that the migrants were ‘enticed’ to get onto the planes bound for Massachusetts. ‘The folks that are contracted, they gave them a release form to sign, they gave them a packet with a map of Martha’s Vineyard.’”).
IMAGE: (L) Florida Gov. Ron DeSantis speaks during the Turning Point USA Student Action Summit held at the Tampa Convention Center on July 22, 2022 in Tampa, Florida. (Joe Raedle/Getty Images); (R) Groups of migrants wait outside the Migrant Resource Center to receive food from the San Antonio Catholic Charities on September 19, 2022 in San Antonio, Texas. The City of San Antonio Migrant Resource Center is the place of origin of the two planeloads of mostly Venezuelan migrants who were sent via Florida to Martha’s Vineyard in Massachusetts by Florida Gov. Ron DeSantis. (Jordan Vonderhaar/Getty Images)