85R3668 SCL/ADM-D
By: Fallon H.B. No. 754
A BILL TO BE ENTITLED
AN ACT
relating to the enforcement by certain governmental entities of
state and federal laws governing immigration and to the duties of
law enforcement agencies concerning certain arrested persons.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Chapter 2, Code of Criminal Procedure, is
amended by adding Articles 2.251, 2.252, and 2.253 to read as
follows:
Art. 2.251. ENFORCEMENT OF FEDERAL IMMIGRATION LAW. (a) A
peace officer may not stop a motor vehicle or conduct a search of a
business or residence solely to enforce a federal law relating to
immigrants or immigration, including the federal Immigration and
Nationality Act (8 U.S.C. Section 1101 et seq.), unless the officer
is acting:
(1) at the request of, and providing assistance to, an
appropriate federal law enforcement officer; or
(2) under the terms of an agreement between the law
enforcement agency employing the officer and the federal government
under which the agency receives delegated authority to enforce
federal law relating to immigrants or immigration.
(b) A peace officer may arrest an undocumented person only
if the officer is acting under the authority granted under Article
2.13.
Art. 2.252. DUTIES RELATED TO CERTAIN ARRESTED PERSONS.
(a) If a person is arrested and is unable to provide proof of the
person's lawful presence in the United States, not later than 48
hours after the 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 from the federal
Priority Enforcement Program operated by United States Immigration
and Customs Enforcement or a successor program; and
(2) if information obtained under Subdivision (1)
reveals that the person is not a citizen or national of the United
States and is unlawfully present in the United States according to
the terms of the federal Immigration and Nationality Act (8 U.S.C.
Section 1101 et seq.):
(A) provide notice of that fact to the judge or
magistrate authorized to grant or deny the person's release on bail
under Chapter 17; and
(B) record that fact in the person's case file.
(b) A law enforcement agency is not required to perform a
duty 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 that duty before
transferring custody of the person.
(c) A judge or magistrate who receives notice of a person's
immigration status under this article shall record that status in
the court record.
Art. 2.253. DUTIES RELATED TO IMMIGRATION DETAINER. (a) 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;
(2) record in the person's case file that the person is
subject to an immigration detainer; and
(3) comply with, honor, and fulfill the requests made
in the detainer.
(b) A law enforcement agency is not required to perform a
duty imposed by Subsection (a)(1) or (2) with respect to a person
who is transferred to the custody of the agency by another law
enforcement agency if the transferring agency performed that duty
before transferring custody of the person.
(c) A judge or magistrate who receives notice that a person
is subject to a detainer under this article shall record that fact
in the court record, regardless of whether the notice is received
before or after a judgment in the case.
SECTION 2. Chapter 42, Code of Criminal Procedure, is
amended by adding Article 42.039 to read as follows:
Art. 42.039. RELEASE INTO FEDERAL CUSTODY. (a) This
article applies only to a criminal case in which:
(1) the judgment requires the defendant to be confined
in a secure correctional facility; and
(2) the judge:
(A) indicates in the record under Article 2.253
that the defendant is subject to an immigration detainer; or
(B) otherwise indicates in the record that the
defendant is subject to a transfer into federal custody.
(b) In a criminal case described by Subsection (a), the
judge shall, at the time of pronouncement of a sentence of
confinement, issue an order requiring the secure correctional
facility in which the defendant is to be confined to reduce the
defendant's sentence by a period of not more than seven days on the
facility's determination that the reduction in sentence will
facilitate the seamless transfer of the defendant into federal
custody.
(c) If the applicable information described by Subsection
(a)(2)(A) or (B) is not available at the time sentence is pronounced
in the case, the judge shall issue the order described by Subsection
(b) as soon as the information becomes available.
(d) For purposes of Subsection (b), "secure correctional
facility" has the meaning assigned by Section 1.07, Penal Code.
SECTION 3. 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 detainer" means a United States
Department of Homeland Security Form I-247 or a similar or
successor form that requests a local entity to maintain temporary
custody of an alien for the federal government.
(2) "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.).
(3) "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.
(4) "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 or employee of or a division,
department, 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; and
(C) a district attorney or criminal district
attorney.
(5) "Policy" includes a formal, written rule, order,
ordinance, or policy and an informal, unwritten policy.
Sec. 364.002. APPLICABILITY OF CHAPTER. (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,
enforce, or endorse a policy under which the entity prohibits or
discourages the enforcement of immigration laws.
(b) In compliance with Subsection (a), a local entity shall
not prohibit or discourage 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 or 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. DISCRIMINATION 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. COMPLAINT; EQUITABLE RELIEF. (a) Any
person, including the federal government, may file a complaint with
the attorney general if the person offers evidence to support an
allegation that a local entity has adopted, enforced, or endorsed a
policy under which the entity prohibits or discourages the
enforcement of immigration laws or that the entity, by consistent
actions, prohibits or discourages the enforcement of those laws.
The person must include with the complaint the evidence the person
has that supports the complaint.
(b) A local entity for which the attorney general has
received a complaint under Subsection (a) shall comply with a
document request, including a request for supporting documents,
from the attorney general related to the complaint.
(c) 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 grant funds for the
state fiscal year following the year in which a final judicial
determination in an action brought under Subsection (e) is made.
(d) Not later than the 30th day after the day a local entity
receives written notification under Subsection (c), the local
entity shall provide the attorney general with a copy of:
(1) the entity's written policies related to
immigration enforcement actions;
(2) each immigration detainer received by the entity
from the United States Department of Homeland Security; and
(3) each response sent by the entity for a detainer
described by Subdivision (2).
(e) 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, enforces, or
endorses a policy under which the local entity prohibits or
discourages the enforcement of immigration laws or that, by
consistent actions, prohibits or discourages the enforcement of
those 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.
(f) An appeal of a suit brought under Subsection (e) 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. DENIAL OF STATE GRANT FUNDS. (a) A local
entity may not receive state grant funds if the entity adopts,
enforces, or endorses a policy under which the entity prohibits or
discourages the enforcement of immigration laws or, by consistent
actions, prohibits or discourages the enforcement of immigration
laws.
(b) State grant 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 or discouraged the
enforcement of immigration laws.
(c) The comptroller shall adopt rules to implement this
section uniformly among the state agencies from which state grant
funds are distributed to a municipality or county.
(d) A local entity that has not violated Section 364.003 may
not be denied state grant funds, regardless of whether the entity is
a part of another entity that is in violation of that section.
SECTION 4. Not later than January 1, 2018, each local law
enforcement agency subject to this Act shall:
(1) formalize in writing any unwritten, informal
policies relating to the enforcement of immigration laws; and
(2) update the agency's policies to be consistent with
this Act and to include:
(A) provisions prohibiting an agency officer or
employee from preventing agency personnel from taking immigration
enforcement actions described by Section 364.003, Local Government
Code, as added by this Act; and
(B) provisions requiring each agency officer or
employee to comply with Articles 2.251, 2.252, and 2.253, Code of
Criminal Procedure, as added by this Act, if applicable.
SECTION 5. 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.