By: Perry, et al. S.B. No. 4
(In the Senate - Filed November 15, 2016; January 24, 2017,
read first time and referred to Committee on State Affairs;
February 3, 2017, reported adversely, with favorable Committee
Substitute by the following vote: Yeas 7, Nays 2; February 3, 2017,
sent to printer.)
Click here to see the committee vote
COMMITTEE SUBSTITUTE FOR S.B. No. 4 By: Hughes
A BILL TO BE ENTITLED
AN ACT
relating to the enforcement by certain local governmental entities
and campus police departments of state and federal laws governing
immigration and to related duties of certain law enforcement and
judicial entities in the criminal justice system.
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 COUNTY OR MUNICIPALITY FOR
FAILURE TO COMPLY WITH IMMIGRATION DETAINER REQUEST. (a) A county
or municipality that releases from custody a person who is the
subject of an immigration detainer request issued by United States
Immigration and Customs Enforcement is liable for damages resulting
from a felony committed by the person in this state within 10 years
following the person's release if:
(1) the county or municipality:
(A) did not detain the person as requested; and
(B) had probable cause to believe that the person
is not a citizen and is subject to removal from the United States;
and
(2) the person had been convicted before release of an
offense that is punishable as a Class B misdemeanor or any higher
category of offense.
(b) This section does not create liability for damages that
a person who is subject to an immigration detainer request sustains
following the person's release by a county or municipality.
(c) Governmental immunity of a county and municipality to
suit is waived and abolished to the extent of liability created by
this section.
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. 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
aliens, 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, or 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 aliens, immigrants, or immigration.
(b) A peace officer may arrest an alien not lawfully present
in the United States only if the officer is acting under the
authority granted under Article 2.13.
Art. 2.252. DUTIES RELATED TO IMMIGRATION DETAINER
REQUESTS. (a) A law enforcement agency that has custody of a
person subject to an immigration detainer request issued by United
States Immigration and Customs Enforcement shall comply with,
honor, and fulfill any request made in the detainer request and in
any other instrument provided by the federal government.
(b) A law enforcement agency shall presume an immigration
detainer request is based on probable cause and is otherwise valid,
regardless of whether the detainer request is written or verbal.
SECTION 3. Chapter 42, Code of Criminal Procedure, is
amended by adding Article 42.039 to read as follows:
Art. 42.039. COMPLETION OF SENTENCE IN 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 defendant is subject to an immigration
detainer request.
(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 and all
appropriate government officers, including a sheriff, a warden, or
members of the Board of Pardons and Paroles, as appropriate, to
require the defendant to serve in federal custody the final portion
of the defendant's sentence, not to exceed a period of seven days,
following the facility's or officer's determination that the change
in the place of confinement will facilitate the seamless transfer
of the defendant into federal custody. In the absence of an order
issued under this article, a facility or officer acting under
exigent circumstances may perform the transfer after making the
determination described by this subsection. This subsection
applies only if appropriate officers of the federal government
consent to the transfer of the defendant into federal custody under
the circumstances described by this subsection.
(c) If the applicable information described by Subsection
(a)(2) 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. The judge retains
jurisdiction for the purpose of issuing an order under this
article.
(d) For purposes of this article, "secure correctional
facility" has the meaning assigned by Section 1.07, Penal Code.
SECTION 4. Section 22A.001(a), Government Code, is amended
to read as follows:
(a) The attorney general may petition the chief justice of
the supreme court to convene a special three-judge district court
in any suit:
(1) filed in a district court in this state in which
this state or a state officer or agency is a defendant in a claim
that:
(A) [(1)] challenges the finances or operations
of this state's public school system; or
(B) [(2)] involves the apportionment of
districts for the house of representatives, the senate, the State
Board of Education, or the United States Congress, or state
judicial districts; or
(2) involving an alleged violation of Section 752.053
by a local entity or campus police department of an institution of
higher education.
SECTION 5. Chapter 752, Government Code, is amended by
adding Subchapter C to read as follows:
SUBCHAPTER C. ENFORCEMENT OF STATE AND FEDERAL IMMIGRATION LAWS BY
LOCAL ENTITIES AND CAMPUS POLICE DEPARTMENTS
Sec. 752.051. DEFINITIONS. In this chapter:
(1) "Campus police department" means a law enforcement
agency of an institution of higher education.
(2) "Immigration detainer request" means a federal
government request to a local entity or campus police department to
maintain temporary custody of an alien. The term includes verbal
and written requests, including a United States Department of
Homeland Security Form I-247 document or a similar or successor
form.
(3) "Immigration laws" means the laws of this state or
federal law relating to aliens, immigrants, or immigration,
including the federal Immigration and Nationality Act (8 U.S.C.
Section 1101 et seq.).
(4) "Institution of higher education" means:
(A) an institution of higher education as defined
by Section 61.003, Education Code; or
(B) a private or independent institution of
higher education as defined by Section 61.003, Education Code.
(5) "Lawful detention" means the detention of an
individual by a local entity or campus police department 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.
(6) "Local entity" means:
(A) the governing body of a municipality, county,
or special district or authority, subject to Section 752.052;
(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.
(7) "Policy" includes a formal, written rule, order,
ordinance, or policy and an informal, unwritten policy.
Sec. 752.052. 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) Subject to Subsection (c), 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 otherwise subject to Subsection
(b).
Sec. 752.053. POLICY REGARDING IMMIGRATION ENFORCEMENT.
(a) A local entity or campus police department shall not:
(1) adopt, enforce, or endorse a policy under which
the entity or department prohibits or discourages the enforcement
of immigration laws; or
(2) by consistent actions prohibit or discourage the
enforcement of immigration laws.
(b) In compliance with Subsection (a), a local entity or
campus police department 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 or department 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, including information regarding
the person's place of birth:
(A) sending the information to or requesting or
receiving the information from United States Citizenship and
Immigration Services, United States Immigration and Customs
Enforcement, or another relevant federal agency;
(B) maintaining the information; or
(C) exchanging the information with another
local entity or campus police department 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 jail to enforce federal
immigration laws.
Sec. 752.054. DISCRIMINATION PROHIBITED. A local entity, a
campus police department, or a person employed by or otherwise
under the direction or control of the entity or department 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. 752.055. 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 or campus police department is
violating Section 752.053. The person must include with the
complaint the evidence the person has that supports the complaint.
(b) A local entity or campus police department 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 or campus police
department is valid, the attorney general shall, not later than the
10th day after the date of the determination, provide written
notification to the entity or department 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 or department does not
come into compliance with the requirements of Section 752.053 on or
before the 90th day after the date the notification is provided; and
(4) the entity and each entity that is under the
jurisdiction of the local entity or department 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
or campus police department receives written notification under
Subsection (c), the entity or department shall provide the attorney
general with a copy of:
(1) the entity's or department's written policies
related to immigration enforcement actions;
(2) each immigration detainer request received by the
entity or department from the United States Department of Homeland
Security; and
(3) each response sent by the entity or department for
a detainer request described by Subdivision (2).
(e) If the attorney general determines that a complaint
filed under Subsection (a) is valid, the attorney general may
petition the chief justice of the supreme court to convene the
special three-judge district court described by Chapter 22A to hear
a petition for a writ of mandamus or other appropriate equitable
relief to compel the local entity or campus police department that
is violating Section 752.053 to comply with that section. The court
shall be convened in Travis County or the county in which the
principal office of the entity or department is located. 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. 752.056. DENIAL OF STATE GRANT FUNDS; DATABASE.
(a) A local entity, including each entity under the jurisdiction
of the local entity, or a campus police department may not receive
state grant funds if the local entity or department violates
Section 752.053.
(b) Except as provided by Subsection (c), state grant funds
for a local entity or campus police department shall be denied
beginning with the state fiscal year following the year in which a
final judicial determination in an action brought under Section
752.055 is made that the local entity or department has
intentionally violated Section 752.053. State grant funds shall
continue to be denied until reinstated under Section 752.057.
(c) State grant funds for the provision of wearable body
protective gear used for law enforcement purposes may not be denied
under this section.
(d) The comptroller shall adopt rules to implement this
section uniformly among the state agencies from which state grant
funds are distributed to local entities and campus police
departments.
(e) The attorney general shall develop and maintain a
database listing each local entity and campus police department for
which a final judicial determination described by Subsection (b)
has been made. The attorney general shall post the database on the
attorney general's Internet website.
Sec. 752.057. REINSTATEMENT OF STATE GRANT FUNDS.
(a) Except as provided by Subsection (b), not earlier than the
first anniversary of the date of a final judicial determination
that a local entity or campus police department has intentionally
violated Section 752.053, the entity or department may petition the
chief justice of the supreme court to convene the special
three-judge district court described by Chapter 22A to hear an
action against the attorney general seeking a declaratory judgment
regarding the entity's or department's compliance with Section
752.053.
(b) A local entity or campus police department may petition
for the reinstatement of state grant funds under Subsection (a)
before the date described by that subsection if the person who was
the chief executive of the entity or department at the time of the
violation of Section 752.053 is removed from office.
(c) A local entity or campus police department that brings
an action described by Subsection (a) shall comply with a document
request, including a request for supporting documents, from the
attorney general related to the action.
(d) If the court renders a declaratory judgment declaring
that the local entity or campus police department is in compliance
with Section 752.053, state grant funds for the entity or
department shall be reinstated beginning with the first day of the
month following the month in which the declaratory judgment was
rendered.
(e) A local entity or campus police department may not bring
an action described by Subsection (a) more than twice in one
12-month period.
(f) A party is not entitled to recover any attorney's fees
in an action described by Subsection (a).
SECTION 6. It is the intent of the legislature that every
provision, section, subsection, sentence, clause, phrase, or word
in this Act, and every application of the provisions in this Act to
each person or entity, are severable from each other. If any
application of any provision in this Act to any person, group of
persons, or circumstances is found by a court to be invalid for any
reason, the remaining applications of that provision to all other
persons and circumstances shall be severed and may not be affected.
SECTION 7. Not later than January 1, 2018, each 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 752.053, Government Code,
as added by this Act; and
(B) provisions requiring each agency officer or
employee to comply with Articles 2.251 and 2.252, Code of Criminal
Procedure, as added by this Act, if applicable.
SECTION 8. Section 101.0216, Civil Practice and Remedies
Code, as added by this Act, applies only with respect to the release
of a person from custody on or after the effective date of this Act.
SECTION 9. 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.
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