85R3116 ADM-F
By: Workman H.B. No. 328
A BILL TO BE ENTITLED
AN ACT
relating to state and federal laws regarding immigrants or
immigration, including the enforcement of those laws by certain
governmental entities and the use of consular identity documents
for certain purposes.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subchapter B, Chapter 101, Civil Practice and
Remedies Code, is amended by adding Section 101.0216 to read as
follows:
Sec. 101.0216. LIABILITY OF LOCAL GOVERNMENT FOR FAILURE TO
ENFORCE FEDERAL IMMIGRATION LAWS. (a) In this section:
(1) "Lawful detention" has the meaning assigned by
Section 364.001, Local Government Code.
(2) "Local government" means a municipality, county,
or special district or authority.
(b) Notwithstanding Section 101.051, this section applies
to a junior college district, and this chapter applies to a junior
college district with respect to this section.
(c) This section does not apply to an entity to which
Chapter 364, Local Government Code, does not apply.
(d) Except as provided by this subsection, if a local
government fails to assist or cooperate with a federal immigration
officer, as reasonable and necessary to enforce federal immigration
laws with respect to an individual who is under a lawful detention
or under arrest, and who is then released by the local government,
the local government is liable for damages arising from the
individual's actions following release. This section does not
create liability for damages sustained by the individual following
release.
SECTION 2. Chapter 2, Code of Criminal Procedure, is
amended by adding Articles 2.251 and 2.252 to read as follows:
Art. 2.251. DUTIES RELATED TO ARRESTED PERSON. (a) Not
later than 48 hours after a person is arrested and before the person
is released on bond, a law enforcement agency performing the
booking process shall:
(1) review any information available under the federal
Priority Enforcement Program operated by United States Immigration
and Customs Enforcement or a successor program; or
(2) request information regarding the person's
immigration status from:
(A) a peace officer or other law enforcement
officer of this state who is authorized under federal law to verify
a person's immigration status; or
(B) a federal immigration officer, in accordance
with 8 U.S.C. Section 1373(c).
(b) A law enforcement agency is not required to perform the
duties imposed by Subsection (a) with respect to a person who is
transferred to the custody of the agency by another law enforcement
agency if the transferring agency performed those duties before
transferring custody of the person.
Art. 2.252. DUTIES RELATED TO IMMIGRATION DETAINER. A law
enforcement agency that has custody of a person subject to an
immigration detainer issued by United States Immigration and
Customs Enforcement shall:
(1) provide to the judge or magistrate authorized to
grant or deny the person's release on bail under Chapter 17 notice
that the person is subject to an immigration detainer; and
(2) detain the person as required by the immigration
detainer.
SECTION 3. Subchapter B, Chapter 402, Government Code, is
amended by adding Section 402.034 to read as follows:
Sec. 402.034. GOVERNMENTAL ENTITY VIOLATORS DATABASE:
IMMIGRATION RELATED LAWS. (a) In this section:
(1) "Governmental entity" has the meaning assigned by
Section 2057.001.
(2) "Immigration laws" and "local entity" have the
meanings assigned by Section 364.001, Local Government Code.
(b) The attorney general shall establish and maintain a
computerized database containing information with respect to:
(1) each local entity for which a final judicial
determination in an action brought under Section 364.005, Local
Government Code, is made that the entity has intentionally
prohibited the enforcement of immigration laws; and
(2) each governmental entity for which a determination
by the attorney general under Section 2057.004 is made that the
entity has accepted, recognized, or relied on a consular identity
document in violation of Chapter 2057.
(c) The attorney general shall make the database accessible
to the public on the attorney general's Internet website.
(d) The attorney general shall adopt rules as necessary to
administer this section.
SECTION 4. Subtitle B, Title 10, Government Code, is
amended by adding Chapter 2057 to read as follows:
CHAPTER 2057. RECOGNITION OF CONSULAR IDENTITY DOCUMENTS
Sec. 2057.001. DEFINITION. In this chapter, "governmental
entity" means:
(1) a board, commission, department, or other agency
of this state, including an institution of higher education as
defined by Section 61.003, Education Code; and
(2) a political subdivision of this state.
Sec. 2057.002. GOVERNMENTAL RECOGNITION OF CONSULAR
IDENTITY DOCUMENT OF APPLICANT FOR PUBLIC BENEFIT OR SERVICE. In
the provision by a governmental entity of a state or local public
benefit or service that requires the applicant for or recipient of
the public benefit or service to verify the applicant's or
recipient's identity, the governmental entity may not accept,
recognize, or rely on an identity document issued to the applicant
or recipient by a consular office or consular official of another
country, including a matricula consular issued by a consular office
of the United Mexican States located in this country, as primary,
secondary, or supporting evidence of the applicant's or recipient's
identity.
Sec. 2057.003. GOVERNMENTAL RECOGNITION OF CONSULAR
IDENTITY DOCUMENT OF APPLICANT FOR PUBLIC EMPLOYMENT. A
governmental entity may not accept, recognize, or rely on an
identity document issued to the applicant by a consular office or
consular official of another country, including a matricula
consular issued by a consular office of the United Mexican States
located in this country, as primary, secondary, or supporting
evidence of the identity of an applicant for employment by the
governmental entity.
Sec. 2057.004. CITIZEN COMPLAINT; ATTORNEY GENERAL
DETERMINATION. (a) Subject to Subsection (b), any citizen of this
state may file a complaint with the attorney general if the citizen
offers evidence to support an allegation that a governmental entity
has accepted, recognized, or relied on a consular identity document
in violation of this chapter. The citizen must include with the
complaint the evidence the citizen has that supports the complaint.
(b) If the complaint alleges that a political subdivision of
this state accepted, recognized, or relied on a consular identity
document in violation of this chapter, the citizen must reside in
the jurisdiction of the political subdivision.
(c) The attorney general shall determine whether a
complaint filed under this section is valid.
(d) If the attorney general determines that a complaint is
valid, the attorney general shall, not later than the 10th day after
the date of the determination, provide written notification to the
entity that:
(1) the complaint has been filed;
(2) the attorney general has determined that the
complaint is valid; and
(3) information with respect to the determination has
been included on the governmental entity violators database
maintained by the attorney general as provided by Section 402.034.
SECTION 5. Subtitle C, Title 11, Local Government Code, is
amended by adding Chapter 364 to read as follows:
CHAPTER 364. ENFORCEMENT OF STATE AND FEDERAL IMMIGRATION LAWS
Sec. 364.001. DEFINITIONS. In this chapter:
(1) "Immigration laws" means the laws of this state or
federal law relating to immigrants or immigration, including the
federal Immigration and Nationality Act (8 U.S.C. Section 1101 et
seq.).
(2) "Lawful detention" means the detention of an
individual by a local entity for the investigation of a criminal
offense. The term excludes a detention if the sole reason for the
detention is that the individual:
(A) is a victim of or witness to a criminal
offense; or
(B) is reporting a criminal offense.
(3) "Local entity" means:
(A) the governing body of a municipality, county,
or special district or authority, subject to Sections 364.002(a)
and (b);
(B) an officer, employee, or other body that is
part of a municipality, county, or special district or authority,
including a sheriff, municipal police department, municipal
attorney, or county attorney; or
(C) a district attorney or criminal district
attorney.
Sec. 364.002. APPLICABILITY. (a) This chapter does not
apply to a school district or open-enrollment charter school. This
chapter does not apply to the release of information contained in
education records of an educational agency or institution, except
in conformity with the Family Educational Rights and Privacy Act of
1974 (20 U.S.C. Section 1232g).
(b) This chapter does not apply to a hospital or hospital
district created under Subtitle C or D, Title 4, Health and Safety
Code, or a hospital district created under a general or special law
authorized by Article IX, Texas Constitution, to the extent that
the hospital or hospital district is providing access to or
delivering medical or health care services as required under the
following applicable federal or state laws:
(1) 42 U.S.C. Section 1395dd;
(2) 42 U.S.C. Section 1396b(v);
(3) Subchapter C, Chapter 61, Health and Safety Code;
(4) Chapter 81, Health and Safety Code; and
(5) Section 311.022, Health and Safety Code.
(c) Subsection (b) does not exclude the application of this
chapter to a commissioned peace officer employed by or commissioned
by a hospital or hospital district subject to Subsection (b).
Sec. 364.003. LOCAL GOVERNMENT POLICY REGARDING
IMMIGRATION ENFORCEMENT. (a) A local entity shall not adopt a
rule, order, ordinance, or policy under which the entity prohibits
the enforcement of immigration laws.
(b) A local entity shall inquire into the immigration status
of a person under a lawful detention.
(c) In compliance with this section, a local entity shall
not prohibit a person who is a commissioned peace officer described
by Article 2.12, Code of Criminal Procedure, a corrections officer,
a booking clerk, a magistrate, or a district attorney, criminal
district attorney, or other prosecuting attorney and who is
employed by or otherwise under the direction or control of the
entity from doing any of the following:
(1) inquiring into the immigration status of a person
under a lawful detention or under arrest;
(2) with respect to information relating to the
immigration status, lawful or unlawful, of any person under a
lawful detention or under arrest:
(A) sending the information to or requesting or
receiving the information from United States Citizenship and
Immigration Services or United States Immigration and Customs
Enforcement, including information regarding a person's place of
birth;
(B) maintaining the information; or
(C) exchanging the information with another
local entity or a federal or state governmental entity;
(3) assisting or cooperating with a federal
immigration officer as reasonable and necessary, including
providing enforcement assistance; or
(4) permitting a federal immigration officer to enter
and conduct enforcement activities at a municipal or county jail to
enforce federal immigration laws.
Sec. 364.004. CONSIDERATION OF CERTAIN CHARACTERISTICS
PROHIBITED. A local entity or a person employed by or otherwise
under the direction or control of the entity may not consider race,
color, language, or national origin while enforcing immigration
laws except to the extent permitted by the United States
Constitution or Texas Constitution.
Sec. 364.005. CITIZEN COMPLAINT; EQUITABLE RELIEF. (a)
Any citizen residing in the jurisdiction of a local entity may file
a complaint with the attorney general if the citizen offers
evidence to support an allegation that the entity has adopted a
rule, order, ordinance, or policy under which the entity prohibits
the enforcement of immigration laws or that the entity, by
consistent actions, prohibits the enforcement of immigration laws.
The citizen must include with the complaint the evidence the
citizen has that supports the complaint.
(b) If the attorney general determines that a complaint
filed under Subsection (a) against a local entity is valid, the
attorney general shall, not later than the 10th day after the date
of the determination, provide written notification to the entity
that:
(1) the complaint has been filed;
(2) the attorney general has determined that the
complaint is valid;
(3) the attorney general is authorized to file an
action to enjoin the violation if the entity does not come into
compliance with the requirements of Section 364.003 on or before
the 90th day after the date the notification is provided; and
(4) the entity will be denied state funds for the state
fiscal year following the year in which a final judicial
determination in an action brought under Subsection (c) is made.
(c) If the attorney general determines that a complaint
filed under Subsection (a) against a local entity is valid, the
attorney general may file a petition for a writ of mandamus or apply
for other appropriate equitable relief in a district court in
Travis County or in a county in which the principal office of the
entity is located to compel the entity that adopts a rule, order,
ordinance, or policy under which the local entity prohibits the
enforcement of immigration laws or that, by consistent actions,
prohibits the enforcement of immigration laws to comply with
Section 364.003. The attorney general may recover reasonable
expenses incurred in obtaining relief under this subsection,
including court costs, reasonable attorney's fees, investigative
costs, witness fees, and deposition costs.
(d) An appeal of a suit brought under Subsection (c) is
governed by the procedures for accelerated appeals in civil cases
under the Texas Rules of Appellate Procedure. The appellate court
shall render its final order or judgment with the least possible
delay.
Sec. 364.006. REMITTANCE OF STATE HEALTH AND EDUCATION
COSTS. (a) If a final judicial determination under Section 364.005
is made that a local entity intentionally prohibited the
enforcement of immigration laws, the attorney general shall provide
written notice to the Legislative Budget Board of the violation.
(b) On receipt of the notice, the Legislative Budget Board
shall:
(1) determine any health and education costs incurred
by the state because of the violation; and
(2) provide a written report of those costs to the
attorney general, the comptroller, and the local entity.
(c) The local entity shall remit to the comptroller the
amount reported under Subsection (b), and the comptroller shall
deposit the remitted amount in the general revenue fund. If the
local entity is a part of another local entity, that other entity
may remit the amount on behalf of the local entity.
Sec. 364.007. DENIAL OF STATE FUNDS. (a) A local entity
may not receive state funds if the entity adopts a rule, order,
ordinance, or policy under which the entity prohibits the
enforcement of immigration laws or, by consistent actions,
prohibits the enforcement of immigration laws.
(b) State funds for a local entity shall be denied for the
state fiscal year following the year in which a final judicial
determination in an action brought under Section 364.005 is made
that the entity has intentionally prohibited the enforcement of
immigration laws.
(c) The comptroller shall adopt rules to implement this
section uniformly among the state agencies from which state funds
are distributed to a municipality or county.
(d) A local entity that has not violated Section 364.003 may
not be denied state funds, regardless of whether the entity is a
part of another entity that is in violation of that section.
Sec. 364.008. LAW ENFORCEMENT OFFICIAL INDEMNIFICATION.
Unless the law enforcement official was acting in bad faith, a local
entity shall indemnify a law enforcement official of the entity for
reasonable expenses and costs, including attorney's fees, incurred
by the official in connection with a claim asserted against the
official because of the official's compliance with this chapter.
SECTION 6. This Act takes effect immediately if it receives
a vote of two-thirds of all the members elected to each house, as
provided by Section 39, Article III, Texas Constitution. If this
Act does not receive the vote necessary for immediate effect, this
Act takes effect September 1, 2017.