Following a tense debate, the Texas House passed Senate Bill 4 to make illegal border crossing a state crime punishable with up to two years in prison. The bill is part of the Governor’s agenda items for the fourth-called special session. It also allows judges the option to order some migrants to return to the country they illegally crossed from instead of pursuing prosecution and clears officers and state agencies to transport them to ports of entry to ensure compliance. If migrants refuse to comply with an order to return, they could face a second-degree felony charge and up to 20 years in prison.

The bill is making national headlines, and is already subject to threats of litigation.

Statement by Lt. Governor Dan Patrick on passage of SB 4: “Senate Bill 4 is the strongest border security bill ever passed in Texas. SB 4 will require criminal background checks and the collection of fingerprints and photographs of those arrested for crossing the border illegally. The illegal crosser can be jailed or ordered by a magistrate to be returned to the border. If they violate the order and return to Texas, they will face even harsher penalties.”

Statement by the members of the Mexican American Legislative Caucus on passage of SB 4: “MALC members and allies fought hard against SB 4 to highlight how dangerous and unconstitutional it is – but extreme lawmakers didn’t listen. SB 4 is bad policymaking, and we are better than this. Better than pitting neighbor against neighbor and better than recklessly legislating.”

Statement by ACLU of Texas on passage of SB 4: “Texas politicians just passed on of the country’s most radical anti-immigrant laws ever. This legislation is white supremacy in action that will encourage racial profiling and separate Texas families. If Gov. Abbott signs SB 4 into law, we’ll sue.”

SB 4 passed on an 83-61 vote in the Texas House. The Senate already passed the bill last week, so it now heads to the governor’s desk.

The House also passed Senate Bill 3, another agenda item on the Governor’s special session call, that would allocate $1.5 billion for border barriers and $40 million to pay for additional overtime expenses and costs due to an increased law enforcement presence at the border and in the Colony Ridge development in Liberty County, Texas. SB 3, which passed on a 84-59 vote, goes back to the Senate, which previously approved the bill, so it can vote on the amended version before it heads to the governor’s desk.

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Senate Bill 4 (88, 4^th) - Relating to prohibitions on the illegal entry into or illegal presence in this state by a person who is an alien, the enforcement of those prohibitions and certain related orders, including immunity from liability and indemnification for enforcement actions, and authorizing or requiring under certain circumstances the removal of persons who violate those prohibitions, creating criminal offenses.

Detailed Summary from the House Research Organization:

SB 4 would establish the offenses of illegal entry and illegal reentry into the state and would allow judges and magistrates to order certain persons to return to the foreign nation from which they entered in lieu of prosecution or adjudication. The bill also would establish provisions related to immunity for and the indemnification of government officials, employees, and contractors for actions taken to enforce the bill.

Illegal entry and illegal reentry. Under SB 4, a person who was an alien, as defined by federal law, would commit a class B misdemeanor (up to 180 days in jail and/or a maximum fine of $2,000) if the person entered or attempted to enter the state from a foreign nation at any location other than a lawful port of entry. The offense would be a state-jail felony (180 days to two years in a state jail and an optional fine of up to $10,000) if the defendant had been previously convicted of illegal entry from a foreign nation.

It would be an affirmative defense to prosecution that:

• the federal government had granted the defendant asylum or lawful presence in the United States;
• the defendant’s conduct did not constitute a violation of federal law related to improper entry by an alien; or
• the defendant was approved for benefits under the Deferred Action for Childhood Arrivals (DACA) program between June 15, 2012, and July 16, 2021.

The Deferred Action for Parents of Americans (DAPA), Lawful Permanent Residents program, and any program not enacted by the U.S. Congress that is a successor to the DACA or DAPA programs would not provide an affirmative defense.

A person who was an alien under federal law would commit a class A misdemeanor (up to one year in jail and/or a maximum fine of $4,000) if the person entered, attempted to enter, or was at any time found in the state after the person had been denied admission to or excluded, deported, or removed from the United States, or after the person had departed from the United States while an order of exclusion, deportation, or removal was outstanding.

The offense of illegal reentry would be a third-degree felony (two to 10 years in prison and an optional fine of up to $10,000) if:

• the defendant’s removal came after a conviction for the commission of two or more misdemeanors involving drugs, crimes against a person, or both; or
• the defendant was excluded or removed pursuant to federal immigration law.

The offense of illegal reentry would be a second-degree felony (two to 20 years in prison and an optional fine of up to $10,000) if the defendant was removed after a conviction for the commission of a felony.

Orders to return to a foreign nation. After making a determination that probable cause existed for arrest for an illegal entry or reentry offense, a magistrate could order the arrested person released from custody and issue a written order discharging the individual and requiring the person to return to the foreign nation from which they entered or attempted to enter. In lieu of continuing prosecution or entering an adjudication regarding the offense, a judge also could dismiss the pending charge and issue such an order following the person's appearance before a magistrate.

An order to return to a foreign nation could be issued only if the individual being prosecuted:

• agreed to the order.
• had not previously been convicted of an offense related to illegal entry or reentry.
• had not previously obtained a dismissal and discharge related to an illegal entry or reentry offense; and
• was not charged with another offense punishable as a class A misdemeanor or any higher category of offense.

Before a magistrate or judge could issue an order, the arresting law enforcement agency would be required to collect all available identifying information of the person and cross-reference the collected information with all relevant local, state, and federal criminal databases and other federal lists or classifications used to identify actual or potential national security threats.

Upon conviction of an offense related to illegal entry or reentry, the judge would be required to enter in the case’s judgment an order requiring the person to return to the foreign nation from which they entered or attempted to enter, which would take effect upon completion of the imposed term of confinement or imprisonment. The order would have to include the manner of transportation of the person to a port of entry and the law enforcement officer or state agency responsible for monitoring compliance with the order.

By the seventh day after an order was issued, the law enforcement officer or state agency required to monitor compliance with the order would be required to report the order’s issuance to the Department of Public Safety for inclusion in the computerized criminal history system.

If a person who was an alien was charged with or convicted of an illegal entry or reentry offense, a magistrate or judge had issued an order for the person to return to the foreign nation from which the person entered or attempted to enter, and the person refused to comply with the order, the person would commit a second-degree felony.

Under the bill, a court could not abate the prosecution of an offense related to illegal entry or reentry on the basis that a federal determination of the defendant’s immigration status was pending or was going to be initiated.

Arrest prohibited at certain locations. A peace officer could not arrest or detain a person for offenses related to illegal entry or reentry if the person was on the premises or grounds of:

• a public or private primary or secondary school for educational purposes.
• a church, synagogue, or other established place of religious worship.
• a health care facility, including a state facility that provided health care or a health care provider’s office, if the person was there for the purpose of receiving medical treatment; or
• a SAFE-ready facility or another facility that provided forensic medical examinations to sexual assault survivors, provided the person was there to obtain a forensic medical examination and treatment.

Community supervision. If a defendant was charged with or convicted of an offense related to illegal entry or reentry, the defendant would not be eligible for community supervision, including deferred adjudication community supervision.

Furthermore, an inmate serving a sentence for illegal reentry or refusal to comply with an order to return to a foreign nation would not be eligible for release on parole or to mandatory supervision.

Liability and indemnification. A state or local government official, employee, or contractor would be immune from liability for damages arising from a cause of action under state law resulting from an action taken to enforce provisions related to illegal entry or reentry during the course and scope of the individual’s duties on behalf of the state or local government.

The state and local governments would be required to indemnify an official, employee, or contractor for damages arising from a cause of action under federal law resulting from an action taken to enforce provisions related to illegal entry or reentry during the course and scope of the individual’s duties on behalf of the state or local government.

Notwithstanding any other law, an indemnification payment made on behalf of a state official, employee, or contractor for civil actions would not be subject to an indemnification limit under state law. Indemnification payments made by a local government for such actions could not exceed:

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

Provisions related to immunity and indemnification for civil actions would not apply if a court or jury determined that the state or local government official, employee, or contractor acted in bad faith, with conscious indifference, or with recklessness.

State and local governments would be required to indemnify an official, employee, or contractor for reasonable attorney’s fees incurred in defense of a criminal prosecution for an action taken by the official, employee, or contactor to enforce provisions related to illegal entry or reentry during the course and scope of the individual’s duties on behalf of the government.

A state official, employee, or contractor who could be entitled to indemnification for civil actions would be entitled to representation by the attorney general. For a civil action brought against a person who could be entitled to indemnification under the bill, an appeal would have to be taken directly to the state Supreme Court.

These provisions could not be construed to waive any statutory limits on damages under state law.

Other provisions. The bill’s provisions would be severable.

The bill would take effect on the 91st day after the last day of the legislative session.

Governor Appoints Joe Esparza to the Texas Workforce Commission

Governor Greg Abbott appointed Joe Esparza as the Texas Workforce Commission’s new Commissioner Representing Employers, where he will serve almost 650,000 Texas employers that support more than 14 million jobs for Texans.

Joe Esparza of Elgin has served as the Texas Deputy Secretary of State since December 2018. Previously, he served as a senior appointments manager in the Office of the Governor, clerk for the City of Lubbock, and a field technician for the Texas General Land Office.

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