By: Spiller, et al. (Senate Sponsor - Birdwell) H.B. No. 4
(In the Senate - Received from the House October 26, 2023;
October 26, 2023, read first time and referred to Committee on
Border Security; November 2, 2023, reported adversely, with
favorable Committee Substitute by the following vote: Yeas 3,
Nays 2; November 2, 2023, sent to printer.)
Click here to see the committee vote
COMMITTEE VOTE YeaNayAbsent PNVBirdwell X Flores X Blanco X Hinojosa X King X COMMITTEE SUBSTITUTE FOR H.B. No. 4 By: Birdwell
A BILL TO BE ENTITLED
AN ACT
relating to the creation of the criminal offense of improper entry
from a foreign nation and indemnification of certain claims
relating to the enforcement of that offense.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Chapter 38, Penal Code, is amended by adding
Section 38.20 to read as follows:
Sec. 38.20. IMPROPER ENTRY FROM FOREIGN NATION. (a) In
this section, "alien" has the meaning assigned by 8 U.S.C. Section
1101, as that provision existed on January 1, 2023.
(b) A person who is an alien commits an offense if the
person:
(1) enters or attempts to enter this state from a
foreign nation at any location other than a lawful point of entry;
(2) eludes examination or inspection by United States
immigration officers; or
(3) attempts to enter or obtains entry to this state
from a foreign nation by an intentionally false or misleading
representation or the intentional concealment of a material fact.
(c) An offense under this section is a Class B misdemeanor,
except that if it is shown on the trial of the offense that the
person has previously been finally convicted of:
(1) an offense under this section, the offense is a
state jail felony;
(2) a state jail felony described by Subdivision (1)
or any other felony not listed in Article 42A.054(a), Code of
Criminal Procedure, the offense is a felony of the second degree; or
(3) a felony listed in Article 42A.054(a), Code of
Criminal Procedure, the offense is a felony of the first degree.
(d) It is an affirmative defense to prosecution under this
section that:
(1) the actor has been granted a federal immigration
benefit entitling the actor to:
(A) lawful presence in the United States; or
(B) asylum under 8 U.S.C. Section 1158;
(2) the actor's conduct does not constitute a
violation of 8 U.S.C. Section 1325(a); or
(3) the actor was approved for benefits under the
federal Deferred Action for Childhood Arrivals program between June
15, 2012, and July 16, 2021.
(e) For purposes of Subsection (d)(1), the following
federal programs do not confer federal immigration benefits
entitling the actor to lawful presence in the United States:
(1) the Deferred Action for Parents of Americans and
Lawful Permanent Residents; and
(2) any program not enacted by the United States
Congress that is a successor to or materially similar to the program
described by Subdivision (1) or Subsection (d)(3).
(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 actor is pending.
(g) A law enforcement officer of the Department of Public
Safety who arrests a person for an offense under this section shall,
to the extent feasible, detain the person in a facility established
under Operation Lone Star or a similar border security operation of
this state.
(h) A peace officer may not arrest a person for an offense
under this section unless the officer has probable cause to believe
that the person engaged in the conduct constituting the offense.
(i) On conviction of an offense under this section, the
judge shall enter in the judgment in the case an order requiring
that the person be returned to federal authorities at the nearest
port of entry for return to the person's country of origin or the
foreign nation from which the person entered or attempted to enter.
An order issued under this subsection:
(1) takes effect on completion of a term of
confinement or imprisonment imposed by the judgment; and
(2) must include the manner of transportation of the
person to the port of entry and the state agency responsible for
transporting the person and monitoring compliance with the order.
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 OFFENSE OF IMPROPER ENTRY FROM FOREIGN NATION
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 an action taken by the
official, employee, or contractor to enforce Section 38.20, 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.
(b) Indemnification payments made under Subsection (a) by a
local government may not exceed:
(1) $100,000 to any one person or $300,000 for any
single occurrence in the case of personal injury or death; or
(2) $10,000 for a single occurrence of property
damage.
(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 Section 38.20,
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.
(d) This section may not be construed to waive any statutory
limits on damages under state law.
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 an action taken by the official, employee, or contractor to
enforce Section 38.20, 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.
(b) Notwithstanding any other law, indemnification under
Subsection (a) is not subject to any indemnification limits under
state law.
(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 Section 38.20, 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.
(e) This section may not be construed to waive any statutory
limits on damages under state law.
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. Subchapter B, Chapter 42A, Code of Criminal
Procedure, is amended by adding Article 42A.059 to read as follows:
Art. 42A.059. PLACEMENT ON COMMUNITY SUPERVISION
PROHIBITED FOR IMPROPER ENTRY FROM FOREIGN NATION. Notwithstanding
any other provision of this chapter, a defendant is not eligible for
community supervision, including deferred adjudication community
supervision, under this chapter if the defendant is charged with or
convicted of an offense under Section 38.20, Penal Code.
SECTION 4. Section 508.145(a), Government Code, is amended
to read as follows:
(a) An inmate is not eligible for release on parole if the
inmate is under sentence of death, serving a sentence of life
imprisonment without parole, or serving a sentence for any of the
following offenses under the Penal Code:
(1) Section 20A.03, if the offense is based partly or
wholly on conduct constituting an offense under Section
20A.02(a)(5), (6), (7), or (8);
(2) Section 21.02; [or]
(3) Section 22.021, if the offense is punishable under
Subsection (f) of that section; or
(4) Section 38.20.
SECTION 5. Section 508.149, Government Code, is amended by
adding Subsection (a-1) to read as follows:
(a-1) An inmate serving a sentence for an offense under
Section 38.20, Penal Code, may not be released to mandatory
supervision.
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
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 7. This Act takes effect on the 91st day after the
last day of the legislative session.
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