On November 21, 2023, the Texas State Legislature passed Senate Bill (“SB”) 4. Before the Bill becomes effective as law, Governor Greg Abbott must sign the Bill; however, he is expected to do so soon.
Once signed into law, SB4 will give local and state police officers conducting traffic stops the authority to ask for proof of U.S Citizenship. It will also make entering Texas illegally from a foreign country a state crime. The Bill is already being described as having a chilling effect on noncitizens in Texas.
HOW WILL SB4 IMPACT TEXAS?
SB4 creates 2 new Texas state crimes: Illegal entry and illegal re-entry.
Illegal Entry
SB4 makes it a Texas state crime if someone crosses the border into Texas from Mexico and does not use a lawful point of entry.
- Level of Crime: Class B Misdemeanor (up to 180 days in jail and up to $2,000 fine)
- Affirmative defense: Immigration status, including DACA.
Illegal Re-Entry
SB4 makes it a Texas state crime to enter, attempt to enter, or even be in Texas, if the person has previously been denied admission to the U.S., been deported from the U.S., or leaves before a deportation order was executed.
- Level of Crime: Class A Misdemeanor (up to one year in jail and up to $4,000 fine)
- It could also be a 2nd or 3rd degree felony if there are other factors such as a criminal record.
CONSEQUENCES
If convicted of either crime, a State of Texas judge can do the following:
- Order the individual convicted to return to Mexico—even if the individual is not Mexican.
- Dismiss the charges and require the individual to return to Mexico, if:
- The individual agrees;
- The individual does not have a previous offense of illegal entry;
- The individual provides the State with their fingerprints and other applicable biometric information.
- Enter a conviction and sentence to jail. (The judge must order jail time and cannot give an alternative, such as community supervision.)
- If convicted and sentenced, a judge can order the individual to return to Mexico after serving jail time.
- If the individual refuses to comply, they can be charged with a 2nd Degree Felony.
LIMITATIONS
- Being in federal immigration proceedings is not a defense or considered.
- State or local officials (including employees or contractors) cannot be sued for enforcing the new SB4 law.
- The SB4 law cannot be enforced when individuals are within primary or secondary schools, places of worship, or health care facilities, including those providing forensic medical examinations to sexual assault survivors.
POSSIBILITY OF LITIGATION
SB4 is certain to be challenged in court. Although the law as it is written seems extreme and seems to have been written to scare noncitizens, the legal and advocacy community is already anticipating lawsuits will be filed to challenge it. Prospective challenges include:
- States have no authority to enforce federal immigration law under the pre-emption doctrine.
- There is a very high probability this law will lead to racial profiling.
- If the federal government has granted the individual “lawful presence in the United States” that is a defense to illegal entry.
- Lawful presence is not defined in this law, nor does it have an equivalent in federal immigration law.
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