Texas 2023 - 88th 4th C.S.

Texas House Bill HB4 Compare Versions

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Version 2 (New)

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1	1	88S40058 JRR-D
2	2	By: Spiller, Hefner, Geren, Hunter, H.B. No. 4
3	3	Bell of Kaufman, et al.
4	4
5	5
6	6	A BILL TO BE ENTITLED
7	7	AN ACT
8	8	relating to prohibitions on the illegal entry into or illegal
9	9	presence in this state by a person who is an alien, the enforcement
10	10	of those prohibitions and certain related orders, including
11	11	immunity from liability and indemnification for enforcement
12	12	actions, and authorizing or requiring under certain circumstances
13	13	the removal of persons who violate those prohibitions; creating
14	14	criminal offenses.
15	15	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
16	16	SECTION 1. Title 1, Code of Criminal Procedure, is amended
17	17	by adding Chapter 5B to read as follows:
18	18	CHAPTER 5B. PROCEDURES FOR CERTAIN OFFENSES INVOLVING ILLEGAL
19	19	ENTRY INTO THIS STATE
20	20	Art. 5B.001. ENFORCEMENT PROHIBITED IN CERTAIN LOCATIONS.
21	21	Notwithstanding any other law, a peace officer may not arrest or
22	22	detain a person for purposes of enforcing a provision of Chapter 51,
23	23	Penal Code, if the person is on the premises or grounds of:
24	24	(1) a public or private primary or secondary school
25	25	for educational purposes;
26	26	(2) a church, synagogue, or other established place of
27	27	religious worship;
28	28	(3) a health care facility, as defined by Section
29	29	161.471, Health and Safety Code, including a facility a state
30	30	agency maintains or operates to provide health care, or the office
31	31	of a health care provider, as defined by Section 161.471, Health and
32	32	Safety Code, provided that the person is on the premises or grounds
33	33	of the facility or office for the purpose of receiving medical
34	34	treatment; or
35	35	(4) a SAFE-ready facility, as defined by Section
36	36	323.001, Health and Safety Code, or another facility that provides
37	37	forensic medical examinations to sexual assault survivors in
38	38	accordance with Chapter 323, Health and Safety Code, provided that
39	39	the person is on the premises or grounds of the facility for
40	40	purposes of obtaining a forensic medical examination and treatment.
41	41	Art. 5B.002. ORDER TO RETURN TO FOREIGN NATION. (a) A
42	42	magistrate during a person's appearance under Article 14.06 or
43	43	15.17 or the judge in the person's case at any time after that
44	44	appearance may, in lieu of continuing the prosecution of or
45	45	entering an adjudication regarding an offense under Section 51.02
46	46	or 51.03, Penal Code, dismiss the charge pending against the person
47	47	and issue a written order that discharges the person and requires
48	48	the person to return to the foreign nation from which the person
49	49	entered or attempted to enter, if:
50	50	(1) the person agrees to the order;
51	51	(2) the person has not previously been convicted of an
52	52	offense under Chapter 51, Penal Code, or previously obtained a
53	53	dismissal and discharge under this subsection;
54	54	(3) the person is not charged with another offense
55	55	that is punishable as a Class A misdemeanor or any higher category
56	56	of offense; and
57	57	(4) before the issuance of the order dismissing the
58	58	charge and discharging the person, the arresting law enforcement
59	59	agency:
60	60	(A) collects all available identifying
61	61	information of the person, which must include taking fingerprints
62	62	from the person and using other applicable photographic and
63	63	biometric measures to identify the person; and
64	64	(B) cross-references the collected information
65	65	with:
66	66	(i) all relevant local, state, and federal
67	67	criminal databases; and
68	68	(ii) federal lists or classifications used
69	69	to identify a person as a threat or potential threat to national
70	70	security.
71	71	(b) On conviction of an offense under Chapter 51, Penal
72	72	Code, the judge shall enter in the judgment in the case an order
73	73	requiring the person to return to the foreign nation from which the
74	74	person entered or attempted to enter. An order issued under this
75	75	subsection takes effect on completion of the term of confinement or
76	76	imprisonment imposed by the judgment.
77	77	(c) An order issued under this article must include:
78	78	(1) the manner of transportation of the person to a
79	79	port of entry, as defined by Section 51.01, Penal Code; and
80	80	(2) the law enforcement officer or state agency
81	81	responsible for monitoring compliance with the order.
82	82	Art. 5B.003. ABATEMENT OF PROSECUTION ON BASIS OF
83	83	IMMIGRATION STATUS DETERMINATION PROHIBITED. A court may not abate
84	84	the prosecution of an offense under Chapter 51, Penal Code, on the
85	85	basis that a federal determination regarding the immigration status
86	86	of the defendant is pending or will be initiated.
87	87	SECTION 2. Title 10, Penal Code, is amended by adding
88	88	Chapter 51 to read as follows:
89	89	CHAPTER 51. ILLEGAL ENTRY INTO THIS STATE
90	90	Sec. 51.01. DEFINITIONS. In this chapter:
91	91	(1) "Alien" has the meaning assigned by 8 U.S.C.
92	92	Section 1101, as that provision existed on January 1, 2023.
93	93	(2) "Port of entry" means a port of entry in the United
94	94	States as designated by 19 C.F.R. Part 101.
95	95	Sec. 51.02. ILLEGAL ENTRY FROM FOREIGN NATION. (a) A
96	96	person who is an alien commits an offense if the person enters or
97	97	attempts to enter this state directly from a foreign nation at any
98	98	location other than a lawful port of entry.
99	99	(b) An offense under this section is a Class B misdemeanor,
100	100	except that the offense is a state jail felony if it is shown on the
101	101	trial of the offense that the defendant has been previously
102	102	convicted of an offense under this section.
103	103	(c) It is an affirmative defense to prosecution under this
104	104	section that:
105	105	(1) the federal government has granted the defendant:
106	106	(A) lawful presence in the United States; or
107	107	(B) asylum under 8 U.S.C. Section 1158;
108	108	(2) the defendant's conduct does not constitute a
109	109	violation of 8 U.S.C. Section 1325(a); or
110	110	(3) the defendant was approved for benefits under the
111	111	federal Deferred Action for Childhood Arrivals program between June
112	112	15, 2012, and July 16, 2021.
113	113	(d) The following federal programs do not provide an
114	114	affirmative defense for purposes of Subsection (c)(1):
115	115	(1) the Deferred Action for Parents of Americans and
116	116	Lawful Permanent Residents program; and
117	117	(2) any program not enacted by the United States
118	118	Congress that is a successor to or materially similar to the program
119	119	described by Subsection (c)(3) or Subdivision (1).
120	120	Sec. 51.03. ILLEGAL REENTRY BY CERTAIN ALIENS. (a) A
121	121	person who is an alien commits an offense if the person enters,
122	122	attempts to enter, or is at any time found in this state after the
123	123	person:
124	124	(1) has been denied admission to or excluded,
125	125	deported, or removed from the United States; or
126	126	(2) has departed from the United States while an order
127	127	of exclusion, deportation, or removal is outstanding.
128	128	(b) An offense under this section is a Class A misdemeanor,
129	129	except that the offense is:
130	130	(1) a felony of the third degree if:
131	131	(A) the defendant's removal was subsequent to a
132	132	conviction for commission of two or more misdemeanors involving
133	133	drugs, crimes against a person, or both;
134	134	(B) the defendant was excluded pursuant to 8
135	135	U.S.C. Section 1225(c) because the defendant was excludable under 8
136	136	U.S.C. Section 1182(a)(3)(B);
137	137	(C) the defendant was removed pursuant to the
138	138	provisions of 8 U.S.C. Chapter 12, Subchapter V; or
139	139	(D) the defendant was removed pursuant to 8
140	140	U.S.C. Section 1231(a)(4)(B); or
141	141	(2) a felony of the second degree if the defendant was
142	142	removed subsequent to a conviction for the commission of a felony.
143	143	(c) For purposes of this section, "removal" includes an
144	144	order issued under Article 5B.002, Code of Criminal Procedure, or
145	145	any other agreement in which an alien stipulates to removal
146	146	pursuant to a criminal proceeding under either federal or state
147	147	law.
148	148	Sec. 51.04. REFUSAL TO COMPLY WITH ORDER TO RETURN TO
149	149	FOREIGN NATION. (a) A person who is an alien commits an offense if:
150	150	(1) the person has been charged with or convicted of an
151	151	offense under this chapter;
152	152	(2) a magistrate or judge, as applicable, has issued
153	153	an order under Article 5B.002, Code of Criminal Procedure, for the
154	154	person to return to the foreign nation from which the person entered
155	155	or attempted to enter; and
156	156	(3) the person refuses to comply with the order.
157	157	(b) An offense under this section is a felony of the second
158	158	degree.
159	159	SECTION 3. Title 5, Civil Practice and Remedies Code, is
160	160	amended by adding Chapter 117 to read as follows:
161	161	CHAPTER 117. LIABILITY FOR AND INDEMNIFICATION OF CERTAIN CLAIMS
162	162	RELATING TO ENFORCEMENT OF CERTAIN CRIMINAL OFFENSES INVOLVING
163	163	ILLEGAL ENTRY INTO THIS STATE
164	164	Sec. 117.001. DEFINITION. In this chapter, "damages"
165	165	includes any and all damages, fines, fees, penalties, court costs,
166	166	attorney's fees, or other assessments.
167	167	Sec. 117.002. CIVIL IMMUNITY FOR AND INDEMNIFICATION OF
168	168	LOCAL GOVERNMENT OFFICIALS, EMPLOYEES, AND CONTRACTORS. (a)
169	169	Except as provided by Subsection (d), a local government official,
170	170	employee, or contractor is immune from liability for damages
171	171	arising from a cause of action under state law resulting from an
172	172	action taken by the official, employee, or contractor to enforce
173	173	Chapter 51, Penal Code, or an order issued under Article 5B.002,
174	174	Code of Criminal Procedure, during the course and scope of the
175	175	official's, employee's, or contractor's office, employment, or
176	176	contractual performance for or service on behalf of the local
177	177	government.
178	178	(b) Subject to Subsection (c) and except as provided by
179	179	Subsection (d), a local government shall indemnify an official,
180	180	employee, or contractor of the local government for damages arising
181	181	from a cause of action under federal law resulting from an action
182	182	taken by the official, employee, or contractor to enforce Chapter
183	183	51, Penal Code, or an order issued under Article 5B.002, Code of
184	184	Criminal Procedure, during the course and scope of the official's,
185	185	employee's, or contractor's office, employment, or contractual
186	186	performance for or service on behalf of the local government.
187	187	(c) Indemnification payments made under Subsection (b) by a
188	188	local government may not exceed:
189	189	(1) $100,000 to any one person or $300,000 for any
190	190	single occurrence in the case of personal injury or death; or
191	191	(2) $10,000 for a single occurrence of property
192	192	damage.
193	193	(d) Subsections (a) and (b) do not apply if the court or jury
194	194	determines that the local government official, employee, or
195	195	contractor acted in bad faith, with conscious indifference, or with
196	196	recklessness.
197	197	(e) A local government shall indemnify an official,
198	198	employee, or contractor of the local government for reasonable
199	199	attorney's fees incurred in defense of a criminal prosecution
200	200	against the official, employee, or contractor for an action taken
201	201	by the official, employee, or contractor to enforce Chapter 51,
202	202	Penal Code, or an order issued under Article 5B.002, Code of
203	203	Criminal Procedure, during the course and scope of the official's,
204	204	employee's, or contractor's office, employment, or contractual
205	205	performance for or service on behalf of the local government.
206	206	(f) This section may not be construed to waive any statutory
207	207	limits on damages under state law.
208	208	Sec. 117.003. CIVIL IMMUNITY FOR AND INDEMNIFICATION OF
209	209	STATE OFFICIALS, EMPLOYEES, AND CONTRACTORS. (a) Except as
210	210	provided by Subsection (d), an elected or appointed state official
211	211	or a state employee or contractor is immune from liability for
212	212	damages arising from a cause of action under state law resulting
213	213	from an action taken by the official, employee, or contractor to
214	214	enforce Chapter 51, Penal Code, or an order issued under Article
215	215	5B.002, Code of Criminal Procedure, during the course and scope of
216	216	the official's, employee's, or contractor's office, employment, or
217	217	contractual performance for or service on behalf of the state.
218	218	(b) Except as provided by Subsection (d), the state shall
219	219	indemnify an elected or appointed state official or a state
220	220	employee or contractor for damages arising from a cause of action
221	221	under federal law resulting from an action taken by the official,
222	222	employee, or contractor to enforce Chapter 51, Penal Code, or an
223	223	order issued under Article 5B.002, Code of Criminal Procedure,
224	224	during the course and scope of the official's, employee's, or
225	225	contractor's office, employment, or contractual performance for or
226	226	service on behalf of the state.
227	227	(c) Notwithstanding any other law, an indemnification
228	228	payment made under Subsection (b) is not subject to an
229	229	indemnification limit under the laws of this state.
230	230	(d) Subsections (a) and (b) do not apply if the court or jury
231	231	determines that the state official, employee, or contractor acted
232	232	in bad faith, with conscious indifference, or with recklessness.
233	233	(e) The state shall indemnify a state official, employee, or
234	234	contractor for reasonable attorney's fees incurred in defense of a
235	235	criminal prosecution against the official, employee, or contractor
236	236	for an action taken by the official, employee, or contractor to
237	237	enforce Chapter 51, Penal Code, or an order issued under Article
238	238	5B.002, Code of Criminal Procedure, during the course and scope of
239	239	the official's, employee's, or contractor's office, employment, or
240	240	contractual performance for or service on behalf of the state.
241	241	(f) A state official, employee, or contractor who may be
242	242	entitled to indemnification under Subsection (b) is entitled to
243	243	representation by the attorney general, subject to Chapter 104, in
244	244	an action in connection with which the official, employee, or
245	245	contractor may be entitled to that indemnification.
246	246	(g) This section may not be construed to waive any statutory
247	247	limits on damages under state law.
248	248	Sec. 117.004. APPEAL TO SUPREME COURT. For a civil action
249	249	brought against a person who may be entitled to immunity or
250	250	indemnification under Section 117.002 or 117.003, an appeal must be
251	251	taken directly to the supreme court.
252	252	Sec. 117.005. OTHER LAWS NOT AFFECTED. This chapter does
253	253	not affect a defense, immunity, or jurisdictional bar available to
254	254	the state or a local government or an official, employee, or
255	255	contractor of the state or a local government.
256	256	SECTION 4. Subchapter B, Chapter 42A, Code of Criminal
257	257	Procedure, is amended by adding Article 42A.059 to read as follows:
258	258	Art. 42A.059. PLACEMENT ON COMMUNITY SUPERVISION
259	259	PROHIBITED FOR CERTAIN OFFENSES INVOLVING ILLEGAL ENTRY INTO THIS
260	260	STATE. Notwithstanding any other provision of this chapter, a
261	261	defendant is not eligible for community supervision, including
262	262	deferred adjudication community supervision, under this chapter if
263	263	the defendant is charged with or convicted of an offense under
264	264	Chapter 51, Penal Code.
265	265	SECTION 5. Section 508.145(a), Government Code, is amended
266	266	to read as follows:
267	267	(a) An inmate is not eligible for release on parole if the
268	268	inmate is under sentence of death, serving a sentence of life
269	269	imprisonment without parole, or serving a sentence for any of the
270	270	following offenses under the Penal Code:
271	271	(1) Section 20A.03, if the offense is based partly or
272	272	wholly on conduct constituting an offense under Section
273	273	20A.02(a)(5), (6), (7), or (8);
274	274	(2) Section 21.02; [or]
275	275	(3) Section 22.021, if the offense is punishable under
276	276	Subsection (f) of that section; or
277	277	(4) Section 51.03 or 51.04.
278	278	SECTION 6. Section 508.149, Government Code, is amended by
279	279	adding Subsection (a-1) to read as follows:
280	280	(a-1) An inmate serving a sentence for an offense under
281	281	Section 51.03 or 51.04, Penal Code, may not be released to mandatory
282	282	supervision.
283	283	SECTION 7. It is the intent of the legislature that every
284	284	provision, section, subsection, sentence, clause, phrase, or word
285	285	in this Act, and every application of the provisions in this Act to
286	286	every person, group of persons, or circumstances, is severable from
287	287	each other. If any application of any provision in this Act to any
288	288	person, group of persons, or circumstances is found by a court to be
289	289	invalid for any reason, the remaining applications of that
290	290	provision to all other persons and circumstances shall be severed
291	291	and may not be affected.
292	292	SECTION 8. This Act takes effect on the 91st day after the
293	293	last day of the legislative session.