88S30725 JRR/SCL-F
By: Spiller, Hefner, Hunter, Bell of Kaufman, H.B. No. 4
et al.
A BILL TO BE ENTITLED
AN ACT
relating to prohibitions on the illegal entry into or illegal
presence in this state by a person who is an alien, the enforcement
of those prohibitions, and authorizing the removal of persons who
violate certain of those prohibitions in lieu of arrest; creating
criminal offenses.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Title 10, Penal Code, is amended by adding
Chapter 51 to read as follows:
CHAPTER 51. ILLEGAL ENTRY INTO THIS STATE
Sec. 51.01. DEFINITIONS. In this chapter:
(1) "Alien" has the meaning assigned by 8 U.S.C.
Section 1101, as that provision existed on January 1, 2023.
(2) "Port of entry" means a port of entry in the United
States as designated by 19 C.F.R. Part 101.
Sec. 51.02. ILLEGAL ENTRY FROM FOREIGN NATION. (a) A
person who is an alien commits an offense if the person enters or
attempts to enter this state from a foreign nation at any location
other than a lawful port of entry.
(b) An offense under this section is a Class B misdemeanor,
except that the offense is a state jail felony if it is shown on the
trial of the offense that the defendant has been previously
convicted of an offense under this section.
(c) It is an affirmative defense to prosecution under this
section that:
(1) the federal government has granted the defendant:
(A) lawful presence in the United States; or
(B) asylum under 8 U.S.C. Section 1158;
(2) the defendant's conduct does not constitute a
violation of 8 U.S.C. Section 1325(a); or
(3) the defendant was approved for benefits under the
federal Deferred Action for Childhood Arrivals program between June
15, 2012, and July 16, 2021.
(d) The following federal programs do not provide an
affirmative defense for purposes of Subsection (c)(1):
(1) the Deferred Action for Parents of Americans and
Lawful Permanent Residents program; and
(2) any program not enacted by the United States
Congress that is a successor to or materially similar to the program
described by Subsection (c)(3) or Subdivision (1).
(e) A peace officer may, in lieu of arrest, remove a person
detained for a violation of this section by:
(1) collecting any identifying information the person
may have;
(2) transporting the person to a port of entry; and
(3) ordering the person to return to the foreign
nation from which the person entered or attempted to enter.
(f) A court may not abate the prosecution of an offense
under this section on the basis that a federal determination
regarding the immigration status of the defendant is pending.
Sec. 51.03. ILLEGAL REENTRY BY CERTAIN ALIENS. (a) A
person who is an alien commits an offense if the person enters,
attempts to enter, or is at any time found in this state after the
person:
(1) has been denied admission to or excluded,
deported, or removed from the United States; or
(2) has departed from the United States while an order
of exclusion, deportation, or removal is outstanding.
(b) An offense under this section is a Class A misdemeanor,
except that the offense is:
(1) a felony of the third degree if:
(A) the defendant's removal was subsequent to a
conviction for commission of two or more misdemeanors involving
drugs, crimes against a person, or both;
(B) the defendant was excluded pursuant to 8
U.S.C. Section 1225(c) because the defendant was excludable under 8
U.S.C. Section 1182(a)(3)(B);
(C) the defendant was removed pursuant to the
provisions of 8 U.S.C. Chapter 12, Subchapter V; or
(D) the defendant was removed pursuant to 8
U.S.C. Section 1231(a)(4)(B); or
(2) a felony of the second degree if the defendant was
removed subsequent to a conviction for the commission of a felony.
(c) For purposes of Subsections (a) and (b), "removal"
includes any agreement in which an alien stipulates to removal
pursuant to a criminal proceeding under either federal or state
law.
(d) A peace officer may, in lieu of arrest, remove a person
detained for a violation of this section by:
(1) collecting any identifying information the person
may have;
(2) transporting the person to a port of entry; and
(3) ordering the person to return to the foreign
nation from which the person entered or attempted to enter.
(e) A court may not abate the prosecution of an offense
under this section on the basis that a federal determination
regarding the immigration status of the defendant is pending.
Sec. 51.04. REFUSAL TO COMPLY WITH ORDER TO RETURN TO
FOREIGN NATION. (a) A person who is an alien commits an offense if,
following a violation of Section 51.02 or 51.03, the person refuses
to comply with a peace officer's order under Section 51.02(e) or
51.03(d) to return to the foreign nation from which the person
entered or attempted to enter.
(b) An offense under this section is a felony of the second
degree.
SECTION 2. Title 5, Civil Practice and Remedies Code, is
amended by adding Chapter 117 to read as follows:
CHAPTER 117. INDEMNIFICATION OF CERTAIN CLAIMS RELATING TO
ENFORCEMENT OF CERTAIN CRIMINAL OFFENSES INVOLVING ILLEGAL ENTRY
INTO THIS STATE
Sec. 117.001. DEFINITION. In this chapter, "damages"
includes any and all damages, fines, fees, penalties, court costs,
attorney's fees, or other assessments.
Sec. 117.002. LOCAL GOVERNMENT INDEMNIFICATION OF LOCAL
GOVERNMENT OFFICIALS, EMPLOYEES, AND CONTRACTORS. (a) Unless the
court or jury determines that the official, employee, or contractor
acted in bad faith, with conscious indifference, or with
recklessness, a local government shall indemnify an official,
employee, or contractor of the local government for damages arising
from a cause of action resulting from:
(1) an action taken by the official, employee, or
contractor to enforce Chapter 51, Penal Code, during the course and
scope of the official's, employee's, or contractor's office,
employment, or contractual performance for or service on behalf of
the local government; or
(2) an ultra vires action taken by the official,
employee, or contractor in good faith to enforce Chapter 51, Penal
Code, on behalf of the local government.
(b) Indemnification under Subsection (a) is not subject to
the payment limits described by Section 102.003.
(c) A local government shall indemnify an official,
employee, or contractor of the local government for reasonable
attorney's fees incurred in defense of a criminal prosecution
against the official, employee, or contractor for an action taken
by the official, employee, or contractor to enforce Chapter 51,
Penal Code, during the course and scope of the official's,
employee's, or contractor's office, employment, or contractual
performance for or service on behalf of the local government.
Sec. 117.003. STATE INDEMNIFICATION OF STATE OFFICIALS,
EMPLOYEES, AND CONTRACTORS; ATTORNEY GENERAL REPRESENTATION. (a)
Unless the court or jury determines that the state official,
employee, or contractor acted in bad faith, with conscious
indifference, or with recklessness, the state shall indemnify an
elected or appointed state official or a state employee or
contractor for damages arising from a cause of action resulting
from:
(1) an action taken by the official, employee, or
contractor to enforce Chapter 51, Penal Code, during the course and
scope of the official's, employee's, or contractor's office,
employment, or contractual performance for or service on behalf of
the state; or
(2) an ultra vires action taken by the official,
employee, or contractor in good faith to enforce Chapter 51, Penal
Code, on behalf of the state.
(b) Indemnification under Subsection (a) is not subject to
the payment and insurance limits described by Section 104.003.
(c) The state shall indemnify a state official, employee, or
contractor for reasonable attorney's fees incurred in defense of a
criminal prosecution against the official, employee, or contractor
for an action taken by the official, employee, or contractor to
enforce Chapter 51, Penal Code, during the course and scope of the
official's, employee's, or contractor's office, employment, or
contractual performance for or service on behalf of the state.
(d) A state official, employee, or contractor who may be
entitled to indemnification under Subsection (a) is entitled to
representation by the attorney general, subject to Chapter 104, in
an action in connection with which the official, employee, or
contractor may be entitled to that indemnification.
Sec. 117.004. APPEAL TO SUPREME COURT. For a civil action
brought against a person who may be entitled under Section 117.002
or 117.003 to indemnification for damages awarded against the
person in the action, an appeal must be taken directly to the
supreme court.
Sec. 117.005. OTHER LAWS NOT AFFECTED. This chapter does
not affect a defense, immunity, or jurisdictional bar available to
the state or a local government or an official, employee, or
contractor of the state or a local government.
SECTION 3. 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
every person, group of persons, or circumstances, is 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 4. This Act takes effect December 1, 2023, 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 effect on that
date, this Act takes effect on the 91st day after the last day of the
legislative session.