Legislation to create a new law enforcement agency focused on border and immigration enforcement is one step closer to becoming law after the Texas Senate on Wednesday passed the measure on a partisan vote.
House Bill 7, by Rep. Ryan Guillen, R-Rio Grande City, creates the Texas Border Force, which would be under the direction of the Texas Rangers, a division of the Texas Department of Public Safety. The border force would be led by the chief of the Texas Rangers.
The upper chamber tentatively approved the controversial legislation early Wednesday morning after Republican senators added changes to the bill, including a provision that would make it a state crime to enter Texas illegally from Mexico. The bill also mandates a minimum 10-year sentence for human smuggling.
Debate on the bill came after midnight and stretched into the final day the Senate could consider the measure as the Texas Legislature is in its last days. The bill cleared a final procedural hurdle Wednesday evening and will now go back to the Texas House, where lawmakers will either approve the changes or request a conference committee of the two chambers’ members to hash out the differences.
The legislation is a priority for Republican lawmakers as they add more money and manpower to border efforts to combat what they have decried as President Joe Biden’s “open border” policies. The bill has been slammed by Democrats and immigrant rights’ advocates as another tool for law enforcement to harass residents in border communities and a ploy to challenge current immigration policies at the federal level and perhaps tee up a showdown before the U.S. Supreme Court.
The duties of the unit include keeping unauthorized immigrants from entering Texas through non-lethal force, intelligence gathering and analysis, and coordination with other state agencies on border operations. Unit members would also be allowed to make traffic stops and would be directed to set up road checkpoints within a 30-mile radius of the border, Sen. Brian Birdwell, the Senate sponsor of the legislation, said. The checkpoints would be for “safety and contraband” inspections and would be random and mobile, he said.
Sen. Juan “Chuy” Hinojosa, D-McAllen, pressed Birdwell on whether the checkpoints could lead to harassment or intimidation of border residents.
“So, this is pretty much checkpoints where you’ll stop any car and ask for [immigration] documentation?” he asked Birdwell. “Would they be able to search cars without probable cause?”
Birdwell said officers would need probable cause to conduct a search and said that technology provided under the bill would assist in determining if there is contraband in a vehicle.
Opponents of the bill have also raised concerns over the training requirements for members of the unit. An earlier version of the bill stated that the border force would be open to civilians, raising concerns about so-called vigilantes patrolling the border, and was vague on the training provisions for those new recruits.
Birdwell said Wednesday that members of the unit would undergo some level of training, but it would also be open to noncommissioned peace officers. An amendment by Sen. Phil King, R-Weatherford, added language that clarified that only commissioned peace officers would have the authority to make arrests and carry or use a weapon. Noncommissioned officers would serve in supporting roles, which Birdwell said could include transport, supervision of detainees and traffic enforcement.
DPS would also be authorized to enter into an agreement with the Texas Military Department to have military staff assigned to the Texas Border Force, and the legislation also seeks to recruit former members of the U.S. Border Patrol.
The bill would also make it a state crime to enter Texas from Mexico at a place other than a port of entry, which would be a class A misdemeanor, or a felony unless a person was previously convicted of another crime. People arrested on that charge would be held in border facilities and prosecuted on state charges.
Democrats said they were concerned that provision could lead to a migrant not being able to claim asylum, which is legal whether a person crossed at or between ports of entry.
“Is the purpose of HB 7 for Texas to have a mechanism to stop people from crossing the border for the purpose of claiming asylum?” Sen. Jose Menendez, D-San Antonio, asked.
Birdwell said that wasn’t the case as Texas wasn’t enforcing federal immigration policy, but rather, Texas laws.
“[The purpose is] to drive them to the ports of entry to make the claim of asylum. Texas has no authority of an asylum claim,” Birdwell said.
Menendez later tried to amend the bill to require that border unit officers undergo basic training on asylum law, but the provision was tabled on a party-line vote.
If it passes, the bill will likely be challenged in court by opponents who argue that immigration enforcement is solely a federal responsibility. Last week, Samantha Serna Uribe, a staff attorney with the Mexican American Legal Defense and Educational Fund, or MALDEF, said that HB 7 conflicts with an earlier U.S. Supreme Court ruling. In 2012, the U.S. Supreme Court struck down some of the major provisions of legislation in Arizona that sought to expand state-based immigration. The court ruled that most provisions of that law were preempted by federal statute.
“Empowering state officers to decide who unlawfully crosses the border with Mexico conflicts with federal immigration law, as does creating a state immigration offense,” she told the committee.
Birdwell said he thought the bill was on solid footing but conceded that it was possible the federal government could also try to stop the legislation in court.
