By: Schaefer H.B. No. 75
A BILL TO BE ENTITLED
AN ACT
relating to measures to ensure the safety and welfare of the border
region of this state, including protection from ongoing criminal
activity, and public health threats and the establishment of the
Border Protection Unit; creating a criminal offense; creating a
civil penalty.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
ARTICLE 1. BORDER PROTECTION UNIT
SECTION 1.01. Article 2.12, Code of Criminal Procedure, is
amended to read as follows:
Art. 2.12. WHO ARE PEACE OFFICERS. The following are peace
officers:
(1) sheriffs, their deputies, and those reserve
deputies who hold a permanent peace officer license issued under
Chapter 1701, Occupations Code;
(2) constables, deputy constables, and those reserve
deputy constables who hold a permanent peace officer license issued
under Chapter 1701, Occupations Code;
(3) marshals or police officers of an incorporated
city, town, or village, and those reserve municipal police officers
who hold a permanent peace officer license issued under Chapter
1701, Occupations Code;
(4) rangers, officers, and members of the reserve
officer corps commissioned by:
(A) the Public Safety Commission; and
(B) either:
(i) the Director of the Department of
Public Safety; or
(ii) the unit chief of the Border
Protection Unit;
(5) investigators of the district attorneys', criminal
district attorneys', and county attorneys' offices;
(6) law enforcement agents of the Texas Alcoholic
Beverage Commission;
(7) each member of an arson investigating unit
commissioned by a city, a county, or the state;
(8) officers commissioned under Section 37.081,
Education Code, or Subchapter E, Chapter 51, Education Code;
(9) officers commissioned by the General Services
Commission;
(10) law enforcement officers commissioned by the
Parks and Wildlife Commission;
(11) officers commissioned under Chapter 23,
Transportation Code;
(12) municipal park and recreational patrolmen and
security officers;
(13) security officers and investigators commissioned
as peace officers by the comptroller;
(14) officers commissioned by a water control and
improvement district under Section 49.216, Water Code;
(15) officers commissioned by a board of trustees
under Chapter 54, Transportation Code;
(16) investigators commissioned by the Texas Medical
Board;
(17) officers commissioned by:
(A) the board of managers of the Dallas County
Hospital District, the Tarrant County Hospital District, the Bexar
County Hospital District, or the El Paso County Hospital District
under Section 281.057, Health and Safety Code;
(B) the board of directors of the Ector County
Hospital District under Section 1024.117, Special District Local
Laws Code;
(C) the board of directors of the Midland County
Hospital District of Midland County, Texas, under Section 1061.121,
Special District Local Laws Code; and
(D) the board of hospital managers of the Lubbock
County Hospital District of Lubbock County, Texas, under Section
1053.113, Special District Local Laws Code;
(18) county park rangers commissioned under
Subchapter E, Chapter 351, Local Government Code;
(19) investigators employed by the Texas Racing
Commission;
(20) officers commissioned under Chapter 554,
Occupations Code;
(21) officers commissioned by the governing body of a
metropolitan rapid transit authority under Section 451.108,
Transportation Code, or by a regional transportation authority
under Section 452.110, Transportation Code;
(22) investigators commissioned by the attorney
general under Section 402.009, Government Code;
(23) security officers and investigators commissioned
as peace officers under Chapter 466, Government Code;
(24) officers appointed by an appellate court under
Subchapter F, Chapter 53, Government Code;
(25) officers commissioned by the state fire marshal
under Chapter 417, Government Code;
(26) an investigator commissioned by the commissioner
of insurance under Section 701.104, Insurance Code;
(27) apprehension specialists and inspectors general
commissioned by the Texas Juvenile Justice Department as officers
under Sections 242.102 and 243.052, Human Resources Code;
(28) officers appointed by the inspector general of
the Texas Department of Criminal Justice under Section 493.019,
Government Code;
(29) investigators commissioned by the Texas
Commission on Law Enforcement under Section 1701.160, Occupations
Code;
(30) commission investigators commissioned by the
Texas Private Security Board under Section 1702.061, Occupations
Code;
(31) the fire marshal and any officers, inspectors, or
investigators commissioned by an emergency services district under
Chapter 775, Health and Safety Code;
(32) officers commissioned by the State Board of
Dental Examiners under Section 254.013, Occupations Code, subject
to the limitations imposed by that section;
(33) investigators commissioned by the Texas Juvenile
Justice Department as officers under Section 221.011, Human
Resources Code; and
(34) the fire marshal and any related officers,
inspectors, or investigators commissioned by a county under
Subchapter B, Chapter 352, Local Government Code.
SECTION 1.02. Section 411.002(a), Government Code, is
amended to read as follows:
(a) The Department of Public Safety of the State of Texas is
an agency of the state to enforce the laws protecting the public
safety, [and] provide for the prevention and detection of crime,
and defend and secure the state's air, maritime, and land borders.
The department is composed of the Texas Rangers, the Texas Highway
Patrol, the Border Protection Unit, the administrative division,
and other divisions that the commission considers necessary.
SECTION 1.03. Section 411.004, Government Code, is amended
to read as follows:
Sec. 411.004. DUTIES AND POWERS OF COMMISSION. The
commission shall:
(1) formulate plans and policies for:
(A) enforcement of state criminal, traffic, and
safety laws;
(B) prevention of crime;
(C) detection and apprehension of persons who
violate laws; [and]
(D) education of citizens of this state in the
promotion of public safety and the observance of law; and
(E) defense and security of this state's air,
maritime, and land borders;
(2) organize the department and supervise its
operation;
(3) adopt rules considered necessary for carrying out
the department's work;
(4) maintain records of all proceedings and official
orders; and
(5) biennially submit a report of its work to the
governor and legislature, including the commission's and director's
recommendations.
SECTION 1.04. Section 411.006(a), Government Code, is
amended to read as follows:
(a) Subject to Section 411.555, the [The] director shall:
(1) be directly responsible to the commission for the
conduct of and act as executive director of the Texas Highway
Patrol, the Texas Rangers, and other administrative divisions and
departments assigned by the commission, other than the Border
Protection Unit [the department's affairs];
(2) [act as executive director of the department;
[(3)] act with the commission in an advisory capacity,
without vote;
(3) [(4)] adopt rules, subject to commission
approval, considered necessary for the control of the department;
(4) [(5)] issue commissions as law enforcement
officers, under the commission's direction, to all members of the
Texas Rangers and the Texas Highway Patrol and to other officers of
the department;
(5) [(6)] appoint, with the advice and consent of the
commission, the head of a division or bureau provided for by this
chapter;
(6) [(7)] quarterly, annually, and biennially submit
to the commission detailed reports of the operation of the
department, including statements of its expenditures; and
(7) [(8)] prepare, swear to, submit to the governor,
and file in the department's records a quarterly statement
containing an itemized list of all money received and its source and
all money spent and the purposes for which it was spent.
SECTION 1.05. Section 411.007(a), Government Code, is
amended to read as follows:
(a) Subject to the provisions of this chapter, the director
may appoint, promote, reduce, suspend, or discharge any officer or
employee of the department, other than an officer or employee of the
Border Protection Unit.
SECTION 1.06. Section 411.017(a), Government Code, is
amended to read as follows:
(a) A person commits an offense if, without the director's
authorization, the person:
(1) manufactures, sells, or possesses a badge,
identification card, or other item bearing a department insignia or
an insignia deceptively similar to the department's;
(2) makes a copy or likeness of a badge,
identification card, or department insignia, with intent to use or
allow another to use the copy or likeness to produce an item bearing
the department insignia or an insignia deceptively similar to the
department's; or
(3) uses the term "Texas Department of Public Safety,"
"Department of Public Safety," "Texas Ranger," [or] "Texas Highway
Patrol," or "Border Protection Unit" in connection with an object,
with the intent to create the appearance that the object belongs to
or is being used by the department.
SECTION 1.07. Chapter 411, Government Code, is amended by
adding Subchapter S to read as follows:
SUBCHAPTER S. BORDER PROTECTION UNIT
Sec. 411.551. DEFINITIONS. In this subchapter:
(1) "Unit" means the Border Protection Unit.
(2) "Unit chief" means the person appointed under
Section 411.554 as the unit chief.
Sec. 411.552. BORDER PROTECTION UNIT; TERM OF
AUTHORIZATION. (a) The unit is a division under the commission
consisting of the number of commissioned and noncommissioned
officers and other employees authorized by the legislature.
(b) The unit is subject to appropriations by the legislature
and, unless continued in existence by the legislature, is abolished
December 31, 2030.
(c) This subchapter expires December 31, 2030.
Sec. 411.553. HEADQUARTERS. The unit must be headquartered
in the border region.
Sec. 411.554. UNIT CHIEF. (a) The governor shall appoint a
United States citizen to serve as the unit chief of the Border
Protection Unit. The unit chief serves until removed by the
governor.
(b) The unit chief may appoint, with the advice and consent
of the commission, deputy unit chiefs and assistant unit chiefs who
shall perform the duties that the unit chief designates. Deputy
unit chiefs and assistant unit chiefs serve until removed by the
unit chief.
(c) The unit chief, deputy unit chiefs, and assistant unit
chiefs are entitled to annual salaries as provided by the
legislature.
Sec. 411.555. GENERAL POWERS AND DUTIES OF UNIT AND UNIT
CHIEF. (a) The unit chief shall:
(1) be directly responsible to the commission for all
conduct of the unit, but may be removed only by the governor under
Section 411.554;
(2) act as the executive director of the unit;
(3) act with the commission in an advisory capacity,
without vote;
(4) adopt rules, subject to commission approval,
considered necessary for the control and general administration of
the unit, including rules governing the procurement of facilities
and equipment for the unit and the training and working conditions
for unit personnel;
(5) issue commissions as law enforcement officers,
under the commission's direction, to members of the unit;
(6) create as necessary, with the advice and consent
of the commission, operational or administrative divisions within
the unit and appoint heads of those divisions;
(7) employ as necessary commissioned and
noncommissioned officers and other employees to perform unit
operations and functions;
(8) quarterly, annually, and biennially submit to the
commission detailed reports of the operation of the unit, including
statements of its expenditures; and
(9) prepare, swear to, submit to the governor, and
file in the unit's records a quarterly statement containing an
itemized list of all money received and its source and all money
spent and the purposes for which it was spent.
(b) The unit chief or unit chief's designee shall provide to
members of the commission and to employees of the unit, as often as
necessary, information regarding the requirements for office or
employment under this chapter, including information regarding a
person's responsibilities under applicable law relating to
standards of conduct for state officers or employees.
(c) Subject to Subsection (d), the following provisions
apply to the unit chief with respect to the unit in the same manner
as the provisions apply to the director with respect to the
department or, as applicable, apply to the unit when acting at the
direction of the unit chief in the same manner as the provisions
apply to the department when acting at the direction of the
director:
(1) Section 411.007;
(2) Section 411.0071;
(3) Section 411.0075;
(4) Section 411.0079;
(5) Section 411.009;
(6) Section 411.0095;
(7) Section 411.0097, as added by Section 3, Chapter
556 (H.B. 1239), Acts of the 79th Legislature, Regular Session,
2005;
(8) Section 411.0097, as added by Section 1, Chapter
693 (S.B. 293), Acts of the 79th Legislature, Regular Session,
2005;
(9) Section 411.0098;
(10) Section 411.013(b);
(11) Section 411.0131;
(12) Section 411.0132;
(13) Section 411.0141(e);
(14) Section 411.015;
(15) Section 411.016;
(16) Section 411.0161;
(17) Section 411.0162;
(18) Section 411.0163;
(19) Section 411.0164;
(20) Section 411.017;
(21) Section 411.018;
(22) Sections 411.0207(c)(1)-(5);
(23) Sections 411.0208(d) and (e);
(24) Section 411.0209;
(25) Section 411.02095;
(26) Section 411.0865;
(27) Section 411.087(e);
(28) Section 411.0891; and
(29) Section 411.154.
(d) The director may not exercise any operational or
administrative control over the unit chief or the unit. The unit
chief may not exercise any operational or administrative control
over the director or the department, other than the unit.
(e) The unit is a criminal justice agency for purposes of
this chapter.
(f) The unit:
(1) may collect, preserve, ship, and analyze a DNA
sample for the DNA database subject to the rules adopted under
Section 411.146(c)(1); and
(2) is entitled to access or use a DNA sample or record
subject to the rules adopted under Section 411.147(b).
(g) The unit is a law enforcement agency for purposes of
Section 411.1471(b).
(h) The unit may assist local law enforcement with the
investigation of crime.
Sec. 411.556. OFFICE OF AUDIT AND REVIEW FOR UNIT. The
governor shall establish the office of audit and review within the
unit and appoint the director of the office to perform the duties
under Subchapter I with respect to the unit. The director of the
office of audit and review of the unit shall serve until removed by
the governor.
Sec. 411.557. INSPECTOR GENERAL FOR UNIT. (a) The governor
shall establish the office of the inspector general within the unit
and appoint the inspector general of the unit who shall perform with
respect to the unit the duties of Subchapter I-1 or as may be
provided by other law. The inspector general of the unit shall
serve until removed by the governor.
(b) The inspector general of the unit is responsible for:
(1) preparing and delivering assessments concerning
the administration of the unit to the governor, the legislature,
and the unit chief;
(2) acting to prevent and detect serious breaches of
unit policy, fraud, and abuse of office, including any acts of
criminal conduct within the unit; and
(3) independently and objectively reviewing,
investigating, delegating, and overseeing the investigation of:
(A) conduct described by Subdivision (2);
(B) criminal activity occurring within the unit;
(C) allegations of wrongdoing by unit employees;
(D) crimes committed on unit property; and
(E) serious breaches of unit policy.
Sec. 411.558. OFFICERS; OTHER EMPLOYEES. (a) The unit
chief may employ commissioned or noncommissioned officers meeting
the qualifications described by Section 411.561 to perform the
duties of the unit. Those officers are entitled to compensation as
provided by the legislature and must be recruited and trained
within the border region to the extent practicable.
(b) The unit chief may employ individuals who are not
officers as necessary to carry out the duties of the unit.
(c) Subject to the provisions of this chapter, the unit
chief may appoint, promote, reduce, suspend, or discharge any
officer or employee of the unit.
Sec. 411.559. AUTHORITY OF OFFICERS. (a) A commissioned
officer of the unit is governed by the law regulating and defining
the powers and duties of sheriffs performing similar duties, except
that the officer may make arrests and execute processes in a
criminal case in any county.
(b) Subject to Subsection (c), a commissioned or
noncommissioned officer of the unit may, to the extent consistent
with the United States and Texas Constitutions, arrest, apprehend,
or detain persons crossing the Texas-Mexico border unlawfully, and
deter persons attempting to cross the border unlawfully, including
with the use of non-deadly crowd control measures.
(c) A noncommissioned officer may not exercise the
authority provided by Subsection (b) unless specifically
authorized by the commission and the governor and unless the
officer has been provided training approved by the commission and
the governor. A noncommissioned officer may exercise the arrest
authority provided by Subsection (b) only if the authority is
exercised in a county:
(1) contiguous with the Texas-Mexico border; or
(2) adjoining a county described by Subdivision (1).
(d) The commission shall develop or recognize a training
program required by Subsection (c).
Sec. 411.560. DEFENSES TO CIVIL AND CRIMINAL LIABILITY.
Notwithstanding any other law, any defense or affirmative defense
that applies to a peace officer in a civil or criminal action
applies to the unit chief and the officers and other employees of
the unit in a civil or criminal action brought against the unit
chief or an officer or other employee of the unit arising from
conduct engaged in while discharging the duties of the unit.
Sec. 411.561. QUALIFICATIONS AND STANDARDS. (a) To be a
commissioned officer of the unit, a person must hold a peace officer
license issued under Chapter 1701, Occupations Code, and meet any
other qualifications set by the commission.
(b) To be a noncommissioned officer of the unit, a person
must be a United States citizen and meet any other qualifications
set by the commission.
(c) A noncommissioned officer shall operate under the
accountability requirements and standards of professional conduct
set forth by the commission.
(d) The unit is an equal employment opportunity employer and
may not discriminate against or give preferential treatment to any
employee or job applicant on account of the individual's race,
color, sex, national origin, or religion.
Sec. 411.562. FACILITIES AND EQUIPMENT; TRAINING; TRANSFER
FROM DEPARTMENT. (a) The unit shall acquire equipment and
facilities and conduct training necessary to fulfill the
operational, intelligence, communication, logistics, and
administrative duties provided by this chapter and the unit chief.
(b) The commission shall transfer existing personnel,
equipment, and facilities to the unit from within the department as
determined necessary by the commission or the governor, in the
commission's or governor's discretion, while maintaining
accountability and adequate support for all officers and activities
within the commission's responsibility.
Sec. 411.563. CONSTRUCTION AND MAINTENANCE OF PHYSICAL
BARRIERS. (a) The unit shall oversee the construction and
maintenance of walls, fences, and other physical barriers along the
Texas-Mexico border in order to enhance the safety and security of
citizens of this state.
(b) The unit chief, or the unit chief's designee, is
authorized to negotiate and acquire the necessary rights-of-way,
leases, permissions, materials, and services needed to erect and
maintain physical barriers.
(c) The unit may use funds appropriated by the legislature,
other government funds, or donations from United States citizens
and domestic entities.
(d) The commission may delegate authority granted under
this section to another state agency.
Sec. 411.564. OPERATIONAL PLAN TO COORDINATE BORDER
SECURITY. (a) The unit shall develop and recommend to the governor
and report to the legislature a strategic plan that establishes the
framework for the budget and operations of the unit, including
homeland security strategies and the assistance of other state and
local entities. The unit shall annually report to the governor and
the legislature on the implementation of the strategic plan.
(b) The unit shall include in the strategic plan goals,
objectives, and performance measures that involve collaboration
with other state agencies and local entities.
(c) The unit shall create plans and conduct operations
consistent with the strategic plan.
(d) The operational plan under this section must include an
evaluation of 8 U.S.C. Section 1325(a) and other federal laws
relating to the requirement that border crossings occur only at
designated ports of entry.
Sec. 411.565. SEVERABILITY. (a) Mindful of Leavitt v. Jane
L., 518 U.S. 137 (1996), in which in the context of determining the , 518 U.S. 137 (1996), in which in the context of determining the
severability of a state statute the Supreme Court of the United
States held that an explicit statement of legislative intent is
controlling, it is the intent of the legislature that every
provision, section, subsection, sentence, clause, phrase, or word
in this subchapter, and every application of the provisions in this
subchapter to every person, group of persons, or circumstances, are
severable from each other.
(b) If any application of any provision in this subchapter
to any person, group of persons, or circumstances is found by a
court to be invalid, preempted, or unconstitutional, for any reason
whatsoever, then the remaining applications of that provision to
all other persons and circumstances shall be severed and preserved,
and shall remain in effect. All constitutionally valid
applications of the provisions in this subchapter shall be severed
from any applications that a court finds to be invalid, preempted,
or unconstitutional, because it is the legislature's intent and
priority that every single valid application of every statutory
provision be allowed to stand alone.
(c) The legislature further declares that it would have
enacted this subchapter, and each provision, section, subsection,
sentence, clause, phrase, or word, and all constitutional
applications of the provisions of this subchapter, irrespective of
the fact that any provision, section, subsection, sentence, clause,
phrase, or word, or applications of this subchapter were to be
declared invalid, preempted, or unconstitutional.
(d) If any provision of this subchapter is found by any
court to be unconstitutionally vague, then the applications of that
provision that do not present constitutional vagueness problems
shall be severed and remain in force, consistent with the
severability requirements of Subsections (a), (b), and (c).
(e) No court may decline to enforce the severability
requirements of Subsections (a), (b), (c), and (d) on the ground
that severance would "rewrite" the statute or involve the court in
legislative or lawmaking activity. A court that declines to
enforce or enjoins a state official from enforcing a statutory
provision is never rewriting a statute or engaging in legislative
or lawmaking activity, as the statute continues to contain the same
words as before the court's decision. A judicial injunction or
declaration of unconstitutionality:
(1) is nothing more than an edict prohibiting
enforcement of the disputed statute against the named parties to
that lawsuit, which may subsequently be vacated by a later court if
that court has a different understanding of the requirements of the
Texas Constitution or the United States Constitution or federal
law;
(2) is not a formal amendment of the language in a
statute; and
(3) no more rewrites a statute than a decision by the
executive not to enforce a duly enacted statute in a limited and
defined set of circumstances.
(f) If any state or federal court disregards any of the
severability requirements in Subsections (a), (b), (c), (d), or
(e), and declares or finds any provision of this subchapter
facially invalid, preempted, or unconstitutional, when there are
discrete applications of that provision that can be enforced
against a person, group of persons, or circumstances without
violating federal law or the federal or state constitutions, then
that provision shall be interpreted, as a matter of state law, as if
the legislature had enacted a provision limited to the persons,
group of persons, or circumstances for which the provision's
application will not violate federal law or the federal or state
constitutions, and every court shall adopt this saving construction
of that provision until the court ruling that pronounced the
provision facially invalid, preempted, or unconstitutional is
vacated or overruled.
SECTION 1.08. As soon as practicable after the effective
date of this Act, the governor shall appoint the unit chief as
prescribed by Section 411.554, Government Code, as added by this
Act.
ARTICLE 2. TRESPASS: CIVIL AND CRIMINAL PENALTIES
SECTION 2.01. Article 17.44, Code of Criminal Procedure, is
amended by adding Subsection (b-1) to read as follows:
(b-1) A magistrate shall require as a condition of release
on bond for a defendant arrested for an offense under Section 30.08,
Penal Code, that the defendant submit to electronic monitoring
unless the magistrate finds that the defendant is not a flight risk.
SECTION 2.02. Chapter 752, Government Code, is amended by
adding Subchapter D to read as follows:
SUBCHAPTER D. ENFORCEMENT BY ATTORNEY GENERAL
Sec. 752.101. CIVIL PENALTY: TRESPASS WHILE ENTERING THIS
STATE. (a) A person who engages in conduct constituting an offense
under Section 30.08, Penal Code, is liable to this state for a civil
penalty in an amount not to exceed $10,000 for each occurrence of
the conduct.
(b) The attorney general may bring an action to collect the
civil penalty and may recover attorney's fees and costs incurred in
bringing the action.
SECTION 2.03. Chapter 30, Penal Code, is amended by adding
Section 30.08 to read as follows:
Sec. 30.08. TRESPASS WHILE ENTERING THIS STATE. (a) A
person commits an offense if the person knowingly enters the
property of another, without the effective consent of the owner,
while knowingly entering this state from any neighboring
jurisdiction, regardless of the person's immigration status.
(b) An offense under this section is a felony of the third
degree.
(c) If conduct that constitutes an offense under this
section also constitutes an offense under another law, the actor
may be prosecuted under this section, the other law, or both.
ARTICLE 3. PUBLIC HEALTH EMERGENCY
SECTION 3.01. Subtitle D, Title 2, Health and Safety Code,
is amended by adding Chapter 81B to read as follows:
CHAPTER 81B. SUSPENSION OF ENTRY OF PERSONS FROM DESIGNATED PLACES
TO PREVENT SPREAD OF COMMUNICABLE DISEASES
Sec. 81B.001. DEFINITIONS. In this chapter:
(1) "COVID-19" means the 2019 novel coronavirus
disease.
(2) "Federally declared public health emergency"
means:
(A) a public health emergency declared by the
United States secretary of health and human services under 42
U.S.C. Section 247d; or
(B) an emergency or disaster declared, including
under a renewal of the declaration, by the president of the United
States in relation to a public health emergency described by
Paragraph (A) under:
(i) the National Emergencies Act (50 U.S.C.
Section 1601 et seq.); or
(ii) the Robert T. Stafford Disaster Relief
and Emergency Assistance Act (42 U.S.C. Section 5121 et seq.).
(3) "Person" means any individual other than one
described by:
(A) the first sentence of Section 1 of the
Fourteenth Amendment to the United States Constitution; or
(B) 8 U.S.C. Section 1101(a)(20).
(4) "Port of entry" means a port of entry described by
Part 101, Title 19, Code of Federal Regulations (19 C.F.R. part
101), or 22 C.F.R. Section 40.1.
Sec. 81B.002. SUSPENSION OF ENTRY. (a) To the extent
consistent with the United States Constitution, all persons
entering this state by land from another country must pass through a
port of entry for appropriate medical review during:
(1) the pendency of any federally declared public
health emergency for COVID-19;
(2) any time that a federal agency has in place any
vaccination requirement for any person lawfully residing in the
United States, including government contractors or health care
workers, for the purposes of preventing the spread of COVID-19 in
the United States; or
(3) any time the United States Department of State has
in place any travel warning related to COVID-19 for any country from
which citizens have unlawfully entered the United States during the
most recent year for which there is available data.
(b) A person who enters this state from a foreign country
other than in accordance with Subsection (a), to the extent
consistent with the United States Constitution, shall be removed to
the country from which they entered the United States, their
country of origin, or another location as practicable, as rapidly
as possible with as little time spent in congregate settings as
practicable under the circumstances.
Sec. 81B.003. SEVERABILITY. (a) Mindful of Leavitt v. Jane
L., 518 U.S. 137 (1996), in which in the context of determining the , 518 U.S. 137 (1996), in which in the context of determining the
severability of a state statute the Supreme Court of the United
States held that an explicit statement of legislative intent is
controlling, it is the intent of the legislature that every
provision, section, subsection, sentence, clause, phrase, or word
in this chapter, and every application of the provisions in this
chapter to every person, group of persons, or circumstances, are
severable from each other.
(b) If any application of any provision in this chapter to
any person, group of persons, or circumstances is found by a court
to be invalid, preempted, or unconstitutional, for any reason
whatsoever, then the remaining applications of that provision to
all other persons and circumstances shall be severed and preserved,
and shall remain in effect. All constitutionally valid
applications of the provisions in this chapter shall be severed
from any applications that a court finds to be invalid, preempted,
or unconstitutional, because it is the legislature's intent and
priority that every single valid application of every statutory
provision be allowed to stand alone.
(c) The legislature further declares that it would have
enacted this chapter, and each provision, section, subsection,
sentence, clause, phrase, or word, and all constitutional
applications of the provisions of this chapter, irrespective of the
fact that any provision, section, subsection, sentence, clause,
phrase, or word, or applications of this chapter were to be declared
invalid, preempted, or unconstitutional.
(d) If any provision of this chapter is found by any court to
be unconstitutionally vague, then the applications of that
provision that do not present constitutional vagueness problems
shall be severed and remain in force, consistent with the
severability requirements of Subsections (a), (b), and (c).
(e) No court may decline to enforce the severability
requirements of Subsections (a), (b), (c), and (d) on the ground
that severance would "rewrite" the statute or involve the court in
legislative or lawmaking activity. A court that declines to
enforce or enjoins a state official from enforcing a statutory
provision is never rewriting a statute or engaging in legislative
or lawmaking activity, as the statute continues to contain the same
words as before the court's decision. A judicial injunction or
declaration of unconstitutionality:
(1) is nothing more than an edict prohibiting
enforcement of the disputed statute against the named parties to
that lawsuit, which may subsequently be vacated by a later court if
that court has a different understanding of the requirements of the
Texas Constitution or the United States Constitution or federal
law;
(2) is not a formal amendment of the language in a
statute; and
(3) no more rewrites a statute than a decision by the
executive not to enforce a duly enacted statute in a limited and
defined set of circumstances.
(f) If any state or federal court disregards any of the
severability requirements in Subsections (a), (b), (c), (d), or
(e), and declares or finds any provision of this chapter facially
invalid, preempted, or unconstitutional, when there are discrete
applications of that provision that can be enforced against a
person, group of persons, or circumstances without violating
federal law or the federal or state constitutions, then that
provision shall be interpreted, as a matter of state law, as if the
legislature had enacted a provision limited to the persons, group
of persons, or circumstances for which the provision's application
will not violate federal law or the federal or state constitutions,
and every court shall adopt this saving construction of that
provision until the court ruling that pronounced the provision
facially invalid, preempted, or unconstitutional is vacated or
overruled.
ARTICLE 4. SEVERABILITY; EFFECTIVE DATE
SECTION 4.01. (a) If any provision of this Act or its
application to any person or circumstance is held invalid, the
invalidity does not affect other provisions or applications of this
Act that can be given effect without the invalid provision or
application, and to this end the provisions of this Act are declared
to be severable.
(b) Subsection (a) of this section does not affect another
severability provision contained in this Act.
SECTION 4.02. 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 on the 91st day after the last day of
the legislative session.