Texas 2017 - 85th Regular

Texas House Bill HB754 Compare Versions

Only one version of the bill is available at this time.

Old	New	Differences
1	1	85R3668 SCL/ADM-D
2	2	By: Fallon H.B. No. 754
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to the enforcement by certain governmental entities of
8	8	state and federal laws governing immigration and to the duties of
9	9	law enforcement agencies concerning certain arrested persons.
10	10	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
11	11	SECTION 1. Chapter 2, Code of Criminal Procedure, is
12	12	amended by adding Articles 2.251, 2.252, and 2.253 to read as
13	13	follows:
14	14	Art. 2.251. ENFORCEMENT OF FEDERAL IMMIGRATION LAW. (a) A
15	15	peace officer may not stop a motor vehicle or conduct a search of a
16	16	business or residence solely to enforce a federal law relating to
17	17	immigrants or immigration, including the federal Immigration and
18	18	Nationality Act (8 U.S.C. Section 1101 et seq.), unless the officer
19	19	is acting:
20	20	(1) at the request of, and providing assistance to, an
21	21	appropriate federal law enforcement officer; or
22	22	(2) under the terms of an agreement between the law
23	23	enforcement agency employing the officer and the federal government
24	24	under which the agency receives delegated authority to enforce
25	25	federal law relating to immigrants or immigration.
26	26	(b) A peace officer may arrest an undocumented person only
27	27	if the officer is acting under the authority granted under Article
28	28	2.13.
29	29	Art. 2.252. DUTIES RELATED TO CERTAIN ARRESTED PERSONS.
30	30	(a) If a person is arrested and is unable to provide proof of the
31	31	person's lawful presence in the United States, not later than 48
32	32	hours after the person is arrested and before the person is released
33	33	on bond, a law enforcement agency performing the booking process
34	34	shall:
35	35	(1) review any information available from the federal
36	36	Priority Enforcement Program operated by United States Immigration
37	37	and Customs Enforcement or a successor program; and
38	38	(2) if information obtained under Subdivision (1)
39	39	reveals that the person is not a citizen or national of the United
40	40	States and is unlawfully present in the United States according to
41	41	the terms of the federal Immigration and Nationality Act (8 U.S.C.
42	42	Section 1101 et seq.):
43	43	(A) provide notice of that fact to the judge or
44	44	magistrate authorized to grant or deny the person's release on bail
45	45	under Chapter 17; and
46	46	(B) record that fact in the person's case file.
47	47	(b) A law enforcement agency is not required to perform a
48	48	duty imposed by Subsection (a) with respect to a person who is
49	49	transferred to the custody of the agency by another law enforcement
50	50	agency if the transferring agency performed that duty before
51	51	transferring custody of the person.
52	52	(c) A judge or magistrate who receives notice of a person's
53	53	immigration status under this article shall record that status in
54	54	the court record.
55	55	Art. 2.253. DUTIES RELATED TO IMMIGRATION DETAINER. (a) A
56	56	law enforcement agency that has custody of a person subject to an
57	57	immigration detainer issued by United States Immigration and
58	58	Customs Enforcement shall:
59	59	(1) provide to the judge or magistrate authorized to
60	60	grant or deny the person's release on bail under Chapter 17 notice
61	61	that the person is subject to an immigration detainer;
62	62	(2) record in the person's case file that the person is
63	63	subject to an immigration detainer; and
64	64	(3) comply with, honor, and fulfill the requests made
65	65	in the detainer.
66	66	(b) A law enforcement agency is not required to perform a
67	67	duty imposed by Subsection (a)(1) or (2) with respect to a person
68	68	who is transferred to the custody of the agency by another law
69	69	enforcement agency if the transferring agency performed that duty
70	70	before transferring custody of the person.
71	71	(c) A judge or magistrate who receives notice that a person
72	72	is subject to a detainer under this article shall record that fact
73	73	in the court record, regardless of whether the notice is received
74	74	before or after a judgment in the case.
75	75	SECTION 2. Chapter 42, Code of Criminal Procedure, is
76	76	amended by adding Article 42.039 to read as follows:
77	77	Art. 42.039. RELEASE INTO FEDERAL CUSTODY. (a) This
78	78	article applies only to a criminal case in which:
79	79	(1) the judgment requires the defendant to be confined
80	80	in a secure correctional facility; and
81	81	(2) the judge:
82	82	(A) indicates in the record under Article 2.253
83	83	that the defendant is subject to an immigration detainer; or
84	84	(B) otherwise indicates in the record that the
85	85	defendant is subject to a transfer into federal custody.
86	86	(b) In a criminal case described by Subsection (a), the
87	87	judge shall, at the time of pronouncement of a sentence of
88	88	confinement, issue an order requiring the secure correctional
89	89	facility in which the defendant is to be confined to reduce the
90	90	defendant's sentence by a period of not more than seven days on the
91	91	facility's determination that the reduction in sentence will
92	92	facilitate the seamless transfer of the defendant into federal
93	93	custody.
94	94	(c) If the applicable information described by Subsection
95	95	(a)(2)(A) or (B) is not available at the time sentence is pronounced
96	96	in the case, the judge shall issue the order described by Subsection
97	97	(b) as soon as the information becomes available.
98	98	(d) For purposes of Subsection (b), "secure correctional
99	99	facility" has the meaning assigned by Section 1.07, Penal Code.
100	100	SECTION 3. Subtitle C, Title 11, Local Government Code, is
101	101	amended by adding Chapter 364 to read as follows:
102	102	CHAPTER 364. ENFORCEMENT OF STATE AND FEDERAL IMMIGRATION LAWS
103	103	Sec. 364.001. DEFINITIONS. In this chapter:
104	104	(1) "Immigration detainer" means a United States
105	105	Department of Homeland Security Form I-247 or a similar or
106	106	successor form that requests a local entity to maintain temporary
107	107	custody of an alien for the federal government.
108	108	(2) "Immigration laws" means the laws of this state or
109	109	federal law relating to immigrants or immigration, including the
110	110	federal Immigration and Nationality Act (8 U.S.C. Section 1101 et
111	111	seq.).
112	112	(3) "Lawful detention" means the detention of an
113	113	individual by a local entity for the investigation of a criminal
114	114	offense. The term excludes a detention if the sole reason for the
115	115	detention is that the individual:
116	116	(A) is a victim of or witness to a criminal
117	117	offense; or
118	118	(B) is reporting a criminal offense.
119	119	(4) "Local entity" means:
120	120	(A) the governing body of a municipality, county,
121	121	or special district or authority, subject to Sections 364.002(a)
122	122	and (b);
123	123	(B) an officer or employee of or a division,
124	124	department, or other body that is part of a municipality, county, or
125	125	special district or authority, including a sheriff, municipal
126	126	police department, municipal attorney, or county attorney; and
127	127	(C) a district attorney or criminal district
128	128	attorney.
129	129	(5) "Policy" includes a formal, written rule, order,
130	130	ordinance, or policy and an informal, unwritten policy.
131	131	Sec. 364.002. APPLICABILITY OF CHAPTER. (a) This chapter
132	132	does not apply to a school district or open-enrollment charter
133	133	school. This chapter does not apply to the release of information
134	134	contained in education records of an educational agency or
135	135	institution, except in conformity with the Family Educational
136	136	Rights and Privacy Act of 1974 (20 U.S.C. Section 1232g).
137	137	(b) This chapter does not apply to a hospital or hospital
138	138	district created under Subtitle C or D, Title 4, Health and Safety
139	139	Code, or a hospital district created under a general or special law
140	140	authorized by Article IX, Texas Constitution, to the extent that
141	141	the hospital or hospital district is providing access to or
142	142	delivering medical or health care services as required under the
143	143	following applicable federal or state laws:
144	144	(1) 42 U.S.C. Section 1395dd;
145	145	(2) 42 U.S.C. Section 1396b(v);
146	146	(3) Subchapter C, Chapter 61, Health and Safety Code;
147	147	(4) Chapter 81, Health and Safety Code; and
148	148	(5) Section 311.022, Health and Safety Code.
149	149	(c) Subsection (b) does not exclude the application of this
150	150	chapter to a commissioned peace officer employed by or commissioned
151	151	by a hospital or hospital district subject to Subsection (b).
152	152	Sec. 364.003. LOCAL GOVERNMENT POLICY REGARDING
153	153	IMMIGRATION ENFORCEMENT. (a) A local entity shall not adopt,
154	154	enforce, or endorse a policy under which the entity prohibits or
155	155	discourages the enforcement of immigration laws.
156	156	(b) In compliance with Subsection (a), a local entity shall
157	157	not prohibit or discourage a person who is a commissioned peace
158	158	officer described by Article 2.12, Code of Criminal Procedure, a
159	159	corrections officer, a booking clerk, a magistrate, or a district
160	160	attorney, criminal district attorney, or other prosecuting
161	161	attorney and who is employed by or otherwise under the direction or
162	162	control of the entity from doing any of the following:
163	163	(1) inquiring into the immigration status of a person
164	164	under a lawful detention or under arrest;
165	165	(2) with respect to information relating to the
166	166	immigration status, lawful or unlawful, of any person under a
167	167	lawful detention or under arrest:
168	168	(A) sending the information to or requesting or
169	169	receiving the information from United States Citizenship and
170	170	Immigration Services or United States Immigration and Customs
171	171	Enforcement, including information regarding a person's place of
172	172	birth;
173	173	(B) maintaining the information; or
174	174	(C) exchanging the information with another
175	175	local entity or a federal or state governmental entity;
176	176	(3) assisting or cooperating with a federal
177	177	immigration officer as reasonable or necessary, including
178	178	providing enforcement assistance; or
179	179	(4) permitting a federal immigration officer to enter
180	180	and conduct enforcement activities at a municipal or county jail to
181	181	enforce federal immigration laws.
182	182	Sec. 364.004. DISCRIMINATION PROHIBITED. A local entity or
183	183	a person employed by or otherwise under the direction or control of
184	184	the entity may not consider race, color, language, or national
185	185	origin while enforcing immigration laws except to the extent
186	186	permitted by the United States Constitution or Texas Constitution.
187	187	Sec. 364.005. COMPLAINT; EQUITABLE RELIEF. (a) Any
188	188	person, including the federal government, may file a complaint with
189	189	the attorney general if the person offers evidence to support an
190	190	allegation that a local entity has adopted, enforced, or endorsed a
191	191	policy under which the entity prohibits or discourages the
192	192	enforcement of immigration laws or that the entity, by consistent
193	193	actions, prohibits or discourages the enforcement of those laws.
194	194	The person must include with the complaint the evidence the person
195	195	has that supports the complaint.
196	196	(b) A local entity for which the attorney general has
197	197	received a complaint under Subsection (a) shall comply with a
198	198	document request, including a request for supporting documents,
199	199	from the attorney general related to the complaint.
200	200	(c) If the attorney general determines that a complaint
201	201	filed under Subsection (a) against a local entity is valid, the
202	202	attorney general shall, not later than the 10th day after the date
203	203	of the determination, provide written notification to the entity
204	204	that:
205	205	(1) the complaint has been filed;
206	206	(2) the attorney general has determined that the
207	207	complaint is valid;
208	208	(3) the attorney general is authorized to file an
209	209	action to enjoin the violation if the entity does not come into
210	210	compliance with the requirements of Section 364.003 on or before
211	211	the 90th day after the date the notification is provided; and
212	212	(4) the entity will be denied state grant funds for the
213	213	state fiscal year following the year in which a final judicial
214	214	determination in an action brought under Subsection (e) is made.
215	215	(d) Not later than the 30th day after the day a local entity
216	216	receives written notification under Subsection (c), the local
217	217	entity shall provide the attorney general with a copy of:
218	218	(1) the entity's written policies related to
219	219	immigration enforcement actions;
220	220	(2) each immigration detainer received by the entity
221	221	from the United States Department of Homeland Security; and
222	222	(3) each response sent by the entity for a detainer
223	223	described by Subdivision (2).
224	224	(e) If the attorney general determines that a complaint
225	225	filed under Subsection (a) against a local entity is valid, the
226	226	attorney general may file a petition for a writ of mandamus or apply
227	227	for other appropriate equitable relief in a district court in
228	228	Travis County or in a county in which the principal office of the
229	229	entity is located to compel the entity that adopts, enforces, or
230	230	endorses a policy under which the local entity prohibits or
231	231	discourages the enforcement of immigration laws or that, by
232	232	consistent actions, prohibits or discourages the enforcement of
233	233	those laws to comply with Section 364.003. The attorney general may
234	234	recover reasonable expenses incurred in obtaining relief under this
235	235	subsection, including court costs, reasonable attorney's fees,
236	236	investigative costs, witness fees, and deposition costs.
237	237	(f) An appeal of a suit brought under Subsection (e) is
238	238	governed by the procedures for accelerated appeals in civil cases
239	239	under the Texas Rules of Appellate Procedure. The appellate court
240	240	shall render its final order or judgment with the least possible
241	241	delay.
242	242	Sec. 364.006. DENIAL OF STATE GRANT FUNDS. (a) A local
243	243	entity may not receive state grant funds if the entity adopts,
244	244	enforces, or endorses a policy under which the entity prohibits or
245	245	discourages the enforcement of immigration laws or, by consistent
246	246	actions, prohibits or discourages the enforcement of immigration
247	247	laws.
248	248	(b) State grant funds for a local entity shall be denied for
249	249	the state fiscal year following the year in which a final judicial
250	250	determination in an action brought under Section 364.005 is made
251	251	that the entity has intentionally prohibited or discouraged the
252	252	enforcement of immigration laws.
253	253	(c) The comptroller shall adopt rules to implement this
254	254	section uniformly among the state agencies from which state grant
255	255	funds are distributed to a municipality or county.
256	256	(d) A local entity that has not violated Section 364.003 may
257	257	not be denied state grant funds, regardless of whether the entity is
258	258	a part of another entity that is in violation of that section.
259	259	SECTION 4. Not later than January 1, 2018, each local law
260	260	enforcement agency subject to this Act shall:
261	261	(1) formalize in writing any unwritten, informal
262	262	policies relating to the enforcement of immigration laws; and
263	263	(2) update the agency's policies to be consistent with
264	264	this Act and to include:
265	265	(A) provisions prohibiting an agency officer or
266	266	employee from preventing agency personnel from taking immigration
267	267	enforcement actions described by Section 364.003, Local Government
268	268	Code, as added by this Act; and
269	269	(B) provisions requiring each agency officer or
270	270	employee to comply with Articles 2.251, 2.252, and 2.253, Code of
271	271	Criminal Procedure, as added by this Act, if applicable.
272	272	SECTION 5. This Act takes effect immediately if it receives
273	273	a vote of two-thirds of all the members elected to each house, as
274	274	provided by Section 39, Article III, Texas Constitution. If this
275	275	Act does not receive the vote necessary for immediate effect, this
276	276	Act takes effect September 1, 2017.