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Texas Senate committee advances bill allowing state officers to make arrests for unauthorized entry

A youth looks at a new, taller fence being built along U.S.-Mexico border in Ciudad Juarez, Mexico, across the border from Sunland Park, N.M.
Rodrigo Abd
A youth looks at a new, taller fence being built along U.S.-Mexico border in Ciudad Juarez, Mexico, across the border from Sunland Park, N.M.

Border Democrats opposed the measure after arguing it could swell the Texas jail population and violate a migrant’s right to seek asylum.

A Texas Senate committee on Thursday advanced a controversial proposal that would authorize state law enforcement to arrest and charge someone for illegally entering the state from Mexico.

The measure, Senate bill 2424, passed out of the Texas Senate Border Security Committee despite concerns border Democrats raised over how the bill would affect legitimate asylum seekers and whether the legislation could lead to overcrowding in state jails.

The bill’s author, state Sen. Brian Birdwell, R-Granbury, said it’s necessary due to the federal government's inaction when it comes to securing the border. He said some undocumented immigrants illegally cross into Texas on state-owned land but don’t get prosecuted for trespassing. He added that his legislation would be a way to get around private landowners who don’t want to press charges if a migrant is caught on their property.

“The private property owner may not be cooperative in the prosecution portion, where they would not prefer charges for trespassing,” Birdwell said.

He said that the Texas Department of Public Safety would still have discretion on whom to arrest.

But citing the 1.4 million encounters of migrants by law enforcement last year, state Sen. Juan Hinojosa, D-McAllen, said the bill is too broad and that his main concern is with overcrowding in jails. Though some migrants would get turned over to the U.S. Border Patrol, including children and families who cross together, most would be arrested under the bill.

“Where are we going to put them? Are we going to have them in prison camps?” he said. “It is not practical.”

Birdwell conceded that the legislation would require the governor’s office to create a new magistrate location and the Texas Department of Criminal Justice would have to add more jail space to deal with the increase in inmates.

Steve McCraw, the director of the Texas Department of Public Safety, said a county or district would still need to support the prosecution. But Hinojosa said those officials’ hands could be tied if separate legislation to punish local prosecutors for using their discretion on which cases to prosecute passes this session.

State Sen. Cesar Blanco, D-El Paso, said the legislation could undermine a migrant’s legal right to seek asylum if their first encounter after crossing the border is with Texas law enforcement and they are subsequently detained and prosecuted.

McCraw said that the agency’s priority is to arrest migrants who try and avoid detection instead of turning themselves in. But he said that under the bill most migrants, apart from children, would be prosecuted.

“They go through the state process and at the end of it they are turned over to Border Patrol, so they have the opportunity for the asylum process,” he said.

But Blanco said grappling with a separate state charge could hinder a migrant's ability to qualify for asylum.

“My concern is that these are folks that are leaving horrible situations, that we are layering on state crimes to individuals that are just trying to come to this great country and escape their bad situations,” he said. “I am concerned about moving away from our Constitution that grants asylum rights.”

But Birdwell shot back and said the legislation is necessary because the Biden administration isn’t abiding by its constitutional obligations.

“My concern for constitutionality is I’ve got a federal government right now willfully violating its constitutional oath and bringing the problems to this country that it’s bringing,” Birdwell said.

The legislation passed on a party line vote with Birdwell and two other Republicans voting to advance the measure. It now heads to the full Texas Senate, where it will likely pass, for consideration.