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Texas Senate committee advances state’s immigration-enforcement bill after removing key provisions

Migrants cross the Rio Grande from Ciudad Juarez to El Paso Wednesday morning. A new large group has formed just east of the downtown bridge after Texas National Guard blocked a similar entry point.
Julian Aguilar
The Texas Newsroom
Migrants cross the Rio Grande from Ciudad Juarez to El Paso Wednesday morning. A new large group has formed just east of the downtown bridge after Texas National Guard blocked a similar entry point.

A panel of state lawmakers advanced a sweeping, state-based immigration-enforcement bill on Wednesday after stripping the legislation of some of its most controversial elements.

House Bill 4, which creates a new state crime for unauthorized entry into Texas from a foreign country, was voted out by the Texas Senate Committee on Border Security on Wednesday. But the committee removed a key provision: Allowing a state or local police officer to return a migrant to the border without first going through the judicial process.

The Senate’s version also includes language requiring an officer have probable cause to believe an unauthorized immigrant crossed into Texas unlawfully before making an arrest. That was absent from the Texas House’s proposal, which was approved last week after an intense, hours-long debate.

Under the new language of the bill, an undocumented immigrant would be charged with a class B misdemeanor and placed in a state facility, then transported to a port of entry and transferred to a federal officer after they completed their sentence.

State Sen. Brian Birdwell, R-Granbury, the chair of the committee and sponsor of the bill, said the move ensures that the state law, if passed, doesn’t interfere with the federal government, which has purview over immigration enforcement.

“[The original House bill] was a breach of the 10th Amendment preclusion on states to not perform the duties expressly given to the federal government,” he said.

Birdwell added the probable cause language was added to address concerns about whether a police officer would be able to arrest an immigrant anywhere in the state without proof they entered Texas illegally.

“If you have someone you believe is in the country illegally you don’t know if they came through California, Arizona, New Mexico or if they came 10 years ago or 10 minutes after this bill was passed, unless you actually observe the actual offense,” he said.

Despite those concessions, Democrats and other opponents of HB 4 said the bill still subjects minorities and people of color to racial profiling and would cripple border communities’ local budgets with the costs associated with potentially housing tens of thousands of migrants.

Adam Haynes, the policy director for the Texas Conference of Urban Counties, applauded the committee’s efforts to address some of the concerns, but said the proposed legislation will still hit local governments directly in their pocketbooks.

“We have a prohibition against putting misdemeanants into state prisons, county jails are the ones that bear that responsibility, we are going to bear that cost,” he said. “Yes, the federal government over multiple administrations has failed the state of Texas. The status quo is not working. But don’t take the federal government’s failures and put it on the back of Texas property taxpayers. That’s what this bill does.”

Charles Reed, an administrator with Dallas County, said that the bill would likely result in about 75,000 arrests, but there are only about 3,000 jail beds available under Operation Lone Star, the state’s border mission that began more than two years ago.

“And there are only 98,000 county jail beds, they are already at 72% capacity,” he said. “It is mathematically impossible to ft this population into the available jail beds.”

State Sen. Cesar Blanco, D-El Paso, said his county has already determined that it would need a new detention facility with 400 beds to have enough space to house immigrants prosecuted under the bill.

“[That’s] at a cost of $162 million and $60 million annually, just to maintain the operations, and the detentions and the prosecution and the indigent defense and court costs,” he said.

“Lipstick on a pig”

Several immigration lawyers testified against the bill Wednesday and stressed that, despite the changes, the bill still conflicts with federal immigration law.

Lisa Graybill, the vice president of law and policy at the National Immigration Law Center, said HB 4 would require a state court to determine a person’s immigration status, which is a matter for federal immigration judges.

“[House Bill 4] is squarely preempted by federal law, no matter how many times folks on this panel say it isn’t,” she testified. “You cannot put lipstick on this pig, this is inarguably the state of Texas attempting to regulate immigration and the federal government already occupies that space.”

The state’s Republican leadership is unfazed by the preemption argument however and is likely anticipating a legal challenge that could end up before the United States Supreme Court.

In 2012, the U.S. Supreme Court struck down an Arizona law that sought to expand state powers on immigration enforcement. The court ruled that a provision of the law allowing law enforcement to arrest a person without a warrant and based on their immigration status violated federal law.

Attorney General Ken Paxton said during a committee hearing in May that he thought the decision by the high court should be revisited under the court’s current conservative majority.

The bill passed out of the committee 3-2 on a party line vote and now heads to the full Senate for consideration.

Got a tip? Email Julián Aguilar at can follow Julián on Twitter @nachoaguilar.

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