By: Perry, et al. S.B. No. 4
A BILL TO BE ENTITLED
AN ACT
relating to the enforcement by certain state and 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;
providing civil and criminal penalties.
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 STATE, COUNTY, OR MUNICIPALITY
FOR FAILURE TO COMPLY WITH IMMIGRATION DETAINER REQUEST.
(a) Except as provided by Subsection (d), a state criminal justice
agency, 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 state criminal justice agency, county, or
municipality did not detain the person as requested;
(2) the person was not a citizen of the United States
at the time of release; and
(3) the attorney general has petitioned the chief
justice of the supreme court to convene the special three-judge
district court under Section 752.055 to hear an action brought
under that section against the county or municipality.
(a-1) An immigration detainer request described by
Subsection (a) is presumed to be valid, regardless of whether the
detainer is written or verbal.
(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 state criminal justice agency,
county, or municipality.
(c) Sovereign immunity of the state and governmental
immunity of a county and municipality to suit is waived and
abolished to the extent of liability created by this section.
(d) A state criminal justice agency, county, or
municipality is not liable under Subsection (a) for damages
incurred after United States Immigration and Customs Enforcement
subsequently detains the person described by that subsection.
(e) In this section, "state criminal justice agency" has the
meaning assigned by Section 752.051, Government Code.
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.
(c) Notwithstanding Subsection (b), a law enforcement
agency is not required to perform a duty imposed by Subsection (a)
with respect to a person who has provided proof that the person is a
citizen of the United States.
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, state criminal justice agency, 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, STATE CRIMINAL JUSTICE AGENCIES, AND CAMPUS POLICE
DEPARTMENTS
Sec. 752.051. DEFINITIONS. In this subchapter:
(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, state criminal justice
agency, 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, state criminal justice agency, 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.
(8) "State criminal justice agency" means a state
agency that is engaged in the administration of criminal justice
under a statute or executive order and allocates a substantial part
of its annual budget to the administration of criminal justice.
Sec. 752.052. APPLICABILITY OF SUBCHAPTER. (a) This
subchapter does not apply to a school district or open-enrollment
charter school. This subchapter 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 subchapter 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
subchapter to a commissioned peace officer employed by or
commissioned by a hospital or hospital district otherwise subject
to Subsection (b).
(d) This subchapter does not apply to the public health
department of a local entity.
(e) This subchapter does not apply to a commissioned peace
officer employed or contracted by a religious organization during
the officer's employment with the organization or while the officer
is performing the contract.
Sec. 752.053. POLICIES AND ACTIONS REGARDING IMMIGRATION
ENFORCEMENT. (a) A local entity, state criminal justice agency,
or campus police department shall not:
(1) adopt, enforce, or endorse a policy under which
the entity, agency, or department prohibits or discourages the
enforcement of immigration laws;
(2) by consistent actions prohibit or discourage the
enforcement of immigration laws; or
(3) for an entity that is a law enforcement agency, for
an agency, or for a department, by consistent actions intentionally
violate Article 2.252, Code of Criminal Procedure.
(b) In compliance with Subsection (a), a local entity, state
criminal justice agency, 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, agency, 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, state criminal justice agency, 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
state criminal justice agency, a campus police department, or a
person employed by or otherwise under the direction or control of
the entity, agency, or department may not consider race, color,
religion, 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, state criminal justice agency, 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, state criminal justice agency, 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, state criminal
justice agency, 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, agency,
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, agency, 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, agency, 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,
state criminal justice agency, or campus police department receives
written notification under Subsection (c), the entity, agency, or
department shall provide the attorney general with a copy of:
(1) the entity's, agency's, or department's written
policies related to immigration enforcement actions;
(2) each immigration detainer request received by the
entity, agency, or department from the United States Department of
Homeland Security; and
(3) each response sent by the entity, agency, 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, state criminal justice agency,
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,
agency, 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. 752.0555. CIVIL PENALTY. (a) A local entity, state
criminal justice agency, or campus police department that violates
Section 752.053 is subject to a civil penalty in an amount:
(1) not less than $1,000 and not more than $1,500 for
the first violation; and
(2) not less than $25,000 and not more than $25,500 for
each subsequent violation.
(b) Each day of a continuing violation of Section 752.053
constitutes a separate violation for the civil penalty under this
section.
(c) The three-judge district court that hears an action
brought under Section 752.055 against the local entity, state
criminal justice agency, or campus police department shall
determine the amount of the civil penalty under this section.
(d) A civil penalty collected under this section shall be
deposited to the credit of the compensation to victims of crime fund
established under Subchapter B, Chapter 56, Code of Criminal
Procedure.
(e) Governmental immunity of a county and municipality to
suit is waived and abolished to the extent of liability created by
this section.
Sec. 752.0556. CRIMINAL OFFENSE. (a) An elected official
of a municipality, county, or special district or authority, or an
individual who is appointed by the governing body of a
municipality, county, or special district or authority, who
intentionally or knowingly violates Section 752.053 commits an
offense.
(b) An offense under this section is a Class A misdemeanor.
Sec. 752.056. DENIAL OF STATE GRANT FUNDS; DATABASE.
(a) A local entity, including each entity under the jurisdiction
of the local entity, a state criminal justice agency, or a campus
police department may not receive state grant funds if the local
entity, agency, or department violates Section 752.053.
(b) Except as provided by Subsection (c), state grant funds
for a local entity, state criminal justice agency, 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,
agency, 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, state criminal justice
agencies, and campus police departments.
(e) The attorney general shall develop and maintain a
database listing each local entity, state criminal justice agency,
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, state criminal justice agency, or campus
police department has intentionally violated Section 752.053, the
entity, agency, 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,
agency's, or department's compliance with Section 752.053.
(b) A local entity, state criminal justice agency, 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,
agency, or department at the time of the violation of Section
752.053 is removed from office.
(c) A local entity, state criminal justice agency, 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, state criminal justice agency, or campus
police department is in compliance with Section 752.053, state
grant funds for the entity, agency, 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, state criminal justice agency, 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).
Sec. 752.058. COMMUNITY OUTREACH POLICY. (a) Each law
enforcement agency that is subject to the requirements of this
subchapter may adopt a written policy requiring the agency to
perform community outreach activities to educate the public that a
person employed by or otherwise under the direction or control of
the agency may not inquire into the immigration status of a detained
person if the detention occurred solely because the person:
(1) is a victim of or witness to a criminal offense; or
(2) is reporting a criminal offense.
(b) A policy adopted under this section must include
outreach to victims of:
(1) family violence, as that term is defined by
Section 71.004, Family Code, including those receiving services at
family violence centers under Chapter 51, Human Resources Code; and
(2) sexual assault, including those receiving
services under a sexual assault program, as those terms are defined
by Section 420.003.
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.