Texas Governor Greg Abbott signed SB 4 on December 18, placing Texas on the course to yet another state-federal preemption challenge regarding the enforcement of immigration law regarding illegal entry to the United States (US).  The bill’s provisions may go into force on or about March 5, 2024. The provision is in limited ways similar to section 6 of SB 1070 law in Arizona from 2010, requiring law enforcement officers to arrest someone without a warrant if the local law enforcement officer believes the individual is subject to removal from the US. Section 6 was determined as subject to federal preemption by the US Supreme Court in the State of Arizona v. United States, 567 US 387 (2012).

Illegal Entry to Texas

SB 4 creates a new Texas Penal Code (TPC) offense in Chapter 51, which makes it a Class B misdemeanor if an alien (i.e., not a US citizen or national) enters or attempts to enter Texas directly from Mexico at any location other than a lawful port of entry to the US. A Class B misdemeanor is punishable by up to 180 days in jail and up to a fine of $2000 or both. Illegal reentry under the Texas law in TPC §51.03 is subject to a state jail felony, which is punishable by 180 days to two years in jail and a fine of up to $10,000, or both. The bill authorizes a Texas magistrate or judge to issue an order against someone convicted or charged with an offense under Chapter 51 to be returned to the foreign nation from which the person entered or attempted to enter Texas. Failure to comply with the order is a second-degree felony punishable by up to 20 years in jail.

Federal law at 8 USC §1325, which has been in place for almost ten decades, creates a federal misdemeanor regarding an unlawful entry or attempt to enter the US by any alien at any time or place other than that designated by immigration officers. The offense is punishable by up to six months in jail and a fine of not more than $500 for each entry or both. In addition, 8 USC §1326 makes it a felony for an alien who has been denied admission, excluded, deported, or removed or has departed the US while an order of exclusion, deportation, or removal is outstanding, and then enters or attempts to enter the US; or is found in the US; unless the US Attorney General has expressly consented to the reapplication for admission. Based on certain violations prior to such reentry, jail time ranges from not more than two years to 20 years. Of course, federal prosecutions under §§1325 and 1326 are subject to the exercise of prosecutorial discretion. In addition, constitutional challenges have been raised against §1326 due to alleged racist origins of the laws and their disproportionate impact on Hispanic defendants. Note that the statute of limitations for misdemeanors is two years from the action.

  1. Are there any enforcement locations exempted under SB 4?

Yes. Under Chapter 5B, Article 5B.001 of the Texas Code of Criminal Procedure (CCP), places of religious worship, public or private primary or secondary schools for educational purposes, certain health care facilities and offices of health care providers, and a SAFE-ready facility for forensic medical examinations of sexual assault survivors are exempt locations for enforcement of SB 4 provisions. The exemptions do not include colleges or universities. In addition, there is no limitation on enforcement away from the Texas border within the state.

Ports of entry are also not exempted. What happens if migrants are being processed for claims on Texas soil by federal agencies? In addition, what happens to migrants being housed in city or county facilities or tents, who have no immigration status and have yet to be granted asylum?

  1. What must state law enforcement show to support an arrest under Chapter 51 for illegal entry?

Probable cause for the arrest must be found, which is more than a mere suspicion.

  1. May the Texas judge or magistrate dismiss a charge pending under Chapter 51 in lieu of continuing prosecution or making an adjudication?

Yes. A written order may be issued to dismiss the charge and require the person to return to the foreign nation from which they unlawfully entered or attempted to enter Texas if:

  • The person charged agrees to the order.
  • The person was not previously convicted of a Chapter 51 offense and was not previously discharged under Chapter 51.
  • The person is not charged with another offense punishable as a Class A misdemeanor or higher.
  • Before the order is issued, the arresting law enforcement agency collects biometrics and cross-references the collected information in all relevant local, state, and federal criminal databases. In addition, the information must be included in all federal lists or classifications used to identify a person “as a threat or potential threat to national security.” (Comment: Any entry should be identifiable in lists linking the listing to the related offense resulting in the inclusion. Otherwise, the potential negative consequences to future immigration benefits/applications may be more severe.)
  • After conviction under Chapter 51, what must the order of the judge or magistrate contain?

An order would take effect on completion of the jail term imposed. It must include information regarding how the person will be transported to a port of entry between Mexico and Texas and indicate the law enforcement officer or state agency responsible for monitoring compliance with the order. The order also must be filed with the county clerk where the person was arrested or with the clerk of the court with jurisdiction over the case. In addition, no later than seven days after the order is issued, the agency or officer responsible for monitoring compliance must report the issuance of the order to the Department of Public Safety to include in the computerized criminal history system under Chapter 66 of the CCP.

  1. May the court delay (abate) the prosecution of an offense under Chapter 51 due to waiting on a federal determination of immigration status to be initiated or completed?

No. The federal agencies with access to such information do not even have to be consulted before prosecution under Chapter 51 commences it appears. This failure to require even an attempt to confirm immigration status via contact with a federal agency increases the possibility of serious errors.

  1. For those charged with or convicted arising under Chapter 51, are they eligible for community supervision or deferred adjudication or release to mandatory supervision?

No. If an inmate is serving a sentence under Sections 51.03 or .04 (reentry or failure to comply with a Texas state removal order), Section 508.145(a) of the Texas Government Code will prohibit their release on parole. This provision also includes those serving death or life sentences within this prohibition as a comparison. In addition, inmates serving a sentence under Section 51.03 or .04 may not be released to mandatory supervision.

  1. Are there any affirmative defenses to prosecution under Chapter 51?

Yes. If the federal government has granted the defendant:

  • Lawful presence in the US, or
  • Asylum under 8 USC §1158.

Also, there are affirmative defenses available if the defendant’s conduct would not be a violation of 8 USC§1325(a) as to unlawful entry to the US or the defendant was approved for Deferred Action for Childhood Arrivals (DACA) benefits between June 15, 2012, and July 16, 2021. The previously proposed Deferred Action for Parents of Americans and Lawful Permanent Residents program (DAPA) or any successor to DACA or program materially similar to it not enacted by Congress, do not qualify as affirmative defenses to Chapter 51 prosecution.

It will be interesting to see if migrants in line for processing at a location in Texas based on federal agency officers’ directions will be considered a “grant” of lawful presence or perhaps not a violation of 8 USC §1325 as to illegal entry.

  1. May the Texas illegal reentry violation under Section 51.03 be imposed based on federal immigration law determinations?

Yes. Not only may state illegal reentry penalties be imposed for illegal reentry post-issuance of a state removal order under Chapter 51 of the TPC, but also they may apply post a federal removal order or denial of admission to the US. In addition, under the new Article 5B.002 of the CCP, state criminal reentry penalties may be triggered by a “stipulation” to removal under federal or state criminal law proceedings.

  1. Are local government officials, employees, and contractors immune from civil liability arising from damages due to a Chapter 51 TPC enforcement action or an order issued under Article 5B.002 of the CCP?

Yes. Local government officials, employees, or contractors of local governments are immune from liability for damages arising from a cause of action brought under state law due to an action taken by such individuals to enforce Chapter 51 of the TPC or an order issued under Article 5B.002 of the CCP during the course and scope of their performance of duties/services for the local government.

Local governments must indemnify these individuals based on their performance for or service on behalf of the local government in the enforcement of Chapter 51 as to civil suits filed against them under federal law (e.g., 42 USC §1983 as to civil rights violations). The indemnification payments though are limited to:

  • $100,000 to any one person or $300,000 for any single occurrence in the case of personal injury or death; or
  • $10,000 for a single occurrence of property damage.

The indemnification provisions do not apply if a court or jury determines that the local government official, employee, or contractor acted in bad faith, with conscious indifference, or with recklessness. The local government is also responsible for indemnification as to reasonable attorneys’ fees incurred for the defense of a criminal prosecution for an action taken by the official, employee, or contractor of the local government to enforce Chapter 51 of the CCP or an order issued under Article 5B.002 of the CCP. The existing statutory limits on damages under state law are not waived. These provisions are included in Chapter 117 of the CCP.

  1. Are state government officials, employees, and contractors immune from civil liability arising from damages due to a Chapter 51 TPC enforcement action or an order issued under Article 5B.002 of the CCP?

Yes. An elected or appointed state official or a state employee or contractor is immune from liability for damages arising from a cause of action brought under state law due to an action taken by such individuals to enforce Chapter 51 of the TPC or an order issued under Article 5B.002 of the CCP during the course and scope of their contractual performance for or service on behalf of the state.

The state must indemnify these individuals for damages arising from their contractual performance for or service on behalf of the state in the enforcement of TPC Chapter 51  or an Article 5B.002 order as to civil suits arising under federal law (e.g., 42 USC §1983 as to civil rights violations). The indemnification payments are not subject to state law indemnification limits.

In addition, the indemnification provisions do not apply if a court or jury determines that the state official, employee, or contractor acted in bad faith, with conscious indifference, or with recklessness. The state attorney general will provide representation as to the action resulting in indemnification. In addition, the existing statutory limits on damages under state law are not waived.

  1. For those entitled to immunity or indemnification, where must an appeal be made related to a civil action referenced above?

The Texas Supreme Court.

  1. What happened in 2012 to Arizona SB 1070 in the US Supreme Court decision of Arizona v. United States?

SB 1070 was signed into law in Arizona on April 23, 2010. The US Department of Justice filed suit in July of 2010, because SB 1070 would interfere with the federal enforcement of US immigration law. In June of 2012, in a 5-3 decision (Justice Kagan did not participate apparently due to her earlier involvement in the case when she was Solicitor General for the US.), the Supreme Court of the US overturned three of the four provisions of SB 1070 under review. Section 2(b) remained standing, which was referred to as the “show me your papers” clause. Section 2(b) required law-enforcement officers to make a “reasonable attempt” to determine the immigration status of people stopped for other reasons, if “reasonable suspicion exists that the person is an alien and is unlawfully present in the United States.” The actual text is below:

B. FOR ANY LAWFUL CONTACT MADE BY A LAW ENFORCEMENT OFFICIAL OR AGENCY 20 OF THIS STATE OR A COUNTY, CITY, TOWN OR OTHER POLITICAL SUBDIVISION OF THISSTATE WHERE REASONABLE SUSPICION EXISTS THAT THE PERSON IS AN ALIEN WHO IS UNLAWFULLY PRESENT IN THE UNITED STATES, A REASONABLE ATTEMPT SHALL BE MADE, WHEN PRACTICABLE, TO DETERMINE THE IMMIGRATION STATUS OF THE PERSON. THE PERSON’S IMMIGRATION STATUS SHALL BE VERIFIED WITH THE FEDERAL GOVERNMENT PURSUANT TO 8 UNITED STATES CODE SECTION 1373(c).

In allowing Section 2(b) to remain standing, the US Supreme Court relied heavily on the requirement of a state law enforcement officer to make a reasonable attempt to communicate with the federal government as to a person’s immigration status. Of course, the Arizona statute was not limited to the context of illegal entry or reentry to the US as Texas SB 4, but it is critical to note that the federal government already has specific statutes and related procedures for arrest and punishment as to illegal entry or reentry to the US under 8 USC §§1325 and 1326, respectively. The other provisions of SB 1070 addressed by the Supreme Court that were not upheld and were determined to be preempted by federal law included:

  • Section 3 making it a crime to be in Arizona without valid immigration status. (Found subject to field preemption).
  • Section 5(c) making it a crime to apply for or hold a job in Arizona without valid immigration status. (Found subject to field preemption).
  • Section 6 allows police officers to arrest someone without a warrant if the police officer has probable cause to believe that the individual has done something that would justify his deportation from the US. (Found subject to preemption since it would give state officials a much broader power to make arrests than under the federal system and would be an obstacle to the removal system.) Note that in the decision, the Court’s decision stated the following:                                                                                                                                                                              A decision on removability requires a determination whether it is appropriate to allow a foreign national to continue living in the United States. Decisions of this nature touch on foreign relations and must be made with one voice. See Jama v. Immigration and Customs Enforcement543 U. S. 335, 348 (2005) (“Removal decisions, including the selection of a removed alien’s destination, may implicate [the Nation’s] relations with foreign powers and require consideration of changing political and economic circumstances” (internal quotation marks omitted)); see also Galvan v. Press347 U. S. 522, 531 (1954) (“Policies pertaining to the entry of aliens and their right to remain here are . . . entrusted exclusively to Congress . . .”); Truax v. Raich239 U. S. 33, 42 (1915) (“The authority to control immigration—to admit or exclude aliens—is vested solely in the Federal Government”).

It is hard to imagine why the Texas proposed removal authority created under SB4 would remain in effect and not be preempted by existing federal law.

Later, in 2016, Arizona settled a lawsuit with the National Immigration Law Center, dropping the enforcement of the remaining provision of SB 1070.   Arizona Attorney General Mark Brnovich issued the following statement in conjunction with the settlement:

“Officers shall not prolong a stop, detention, or arrest solely to verify immigration status. Officers shall not contact, stop, detain or arrest an individual based on race, color, or national origin, except when it is part of a suspect description.” If officers suspects that a person is in the country illegally, they may contact U.S. Immigration and Customs Enforcement “unless doing so would prolong the stop or detention,” Brnovich wrote.

In conclusion, while the state’s frustration as to the increased demand of migrants at its doorstep is understandable and long endured; the federal government, however, must lead these removal and unlawful entry efforts. The blame for lack of funding and rational solutions addressing the migratory demands at the border must be directed to the inaction of Congress for decades.

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About the Author:

Kathleen Campbell Walker is chair of the Immigration Practice Group of Dickinson Wright PLLC.  She is a national past president and general counsel of the American Immigration Lawyers Association (AILA).  She began practicing immigration law in 1985 after graduating from the University of Texas School of Law. She is board certified in Immigration and Nationality Law by Texas Board of Legal Specialization (TBLS).  She has testified several times before Congress regarding border security and immigration policy. In addition, she received the AILA Founder’s Award, given from time to time to the person or entity having the most substantial impact on the field of immigration law or policy.    She can be reached at 915.541.9360 and her biography can be accessed here.

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