Texas 2023 - 88th 4th C.S.

Texas House Bill HB40 Compare Versions

Version 1 (Old)

Version 2 (New)

Old	New	Differences
1	1	By: Cain H.B. No. 40
2	2
3	3
4	4	A BILL TO BE ENTITLED
5	5	AN ACT
6	6	relating to prohibitions on the illegal entry into or illegal
7	7	presence in this state by a person who is an alien, the enforcement
8	8	of those prohibitions, and authorizing under certain circumstances
9	9	the removal of persons who violate certain of those prohibitions;
10	10	creating criminal offenses.
11	11	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
12	12	SECTION 1. Title 10, Penal Code, is amended by adding
13	13	Chapter 51 to read as follows:
14	14	CHAPTER 51. ILLEGAL ENTRY INTO THIS STATE
15	15	Sec. 51.01. DEFINITIONS. In this chapter:
16	16	(1) "Alien" has the meaning assigned by 8 U.S.C.
17	17	Section 1101, as that provision existed on January 1, 2023.
18	18	(2) "Child" means a person younger than 18 years of
19	19	age.
20	20	(3) "Port of entry" means a port of entry in the United
21	21	States as designated by 19 C.F.R. Part 101.
22	22	Sec. 51.015. ENFORCEMENT PROHIBITED IN CERTAIN LOCATIONS.
23	23	Notwithstanding any other provision of this chapter, a peace
24	24	officer may not arrest, remove, or otherwise detain a person for
25	25	purposes of enforcing a provision of this chapter if the person is
26	26	on the premises or grounds of:
27	27	(1) a public or private primary or secondary school;
28	28	(2) a church, synagogue, or other established place of
29	29	religious worship; or
30	30	(3) a hospital licensed under Chapter 241, Health and
31	31	Safety Code.
32	32	Sec. 51.016. ENFORCEMENT PROHIBITED IN CERTAIN LOCATIONS.
33	33	Notwithstanding any other provision of this chapter, a peace
34	34	officer may not arrest, remove, or otherwise detain a person for
35	35	purposes of enforcing a provision of this chapter if, for purposes
36	36	of obtaining a forensic medical examination and treatment, the
37	37	person is on the premises or grounds of a SAFE-ready facility, as
38	38	defined by Section 323.001, Health and Safety Code, or another
39	39	facility that provides forensic medical examinations to sexual
40	40	assault survivors in accordance with Chapter 323, Health and Safety
41	41	Code.
42	42	Sec. 51.02. ILLEGAL ENTRY FROM FOREIGN NATION. (a) A
43	43	person who is an alien commits an offense if the person enters or
44	44	attempts to enter this state directly from a foreign nation at any
45	45	location other than a lawful port of entry.
46	46	(b) An offense under this section is a Class B misdemeanor,
47	47	except that the offense is a state jail felony if it is shown on the
48	48	trial of the offense that the defendant has been previously
49	49	convicted of an offense under this section.
50	50	(c) It is an affirmative defense to prosecution under this
51	51	section that:
52	52	(1) the federal government has granted the defendant:
53	53	(A) lawful presence in the United States; or
54	54	(B) asylum under 8 U.S.C. Section 1158;
55	55	(2) the defendant's conduct does not constitute a
56	56	violation of 8 U.S.C. Section 1325(a); or
57	57	(3) the defendant was approved for benefits under the
58	58	federal Deferred Action for Childhood Arrivals program between June
59	59	15, 2012, and July 16, 2021.
60	60	(d) The following federal programs do not provide an
61	61	affirmative defense for purposes of Subsection (c)(1):
62	62	(1) the Deferred Action for Parents of Americans and
63	63	Lawful Permanent Residents program; and
64	64	(2) any program not enacted by the United States
65	65	Congress that is a successor to or materially similar to the program
66	66	described by Subsection (c)(3) or Subdivision (1).
67	67	(e) Notwithstanding any other law, a peace officer who is
68	68	charging a person detained for a violation of this section with
69	69	committing an offense under this section may, in lieu of arresting
70	70	the person or taking the person before a magistrate, remove the
71	71	person by:
72	72	(1) collecting available identifying information of
73	73	the person, which may include the use of photographic and biometric
74	74	measures that are cross-referenced with all relevant local, state,
75	75	and federal criminal databases;
76	76	(2) transporting the person to a port of entry; and
77	77	(3) ordering the person to return to the foreign
78	78	nation from which the person entered or attempted to enter.
79	79	(f) A court may not abate the prosecution of an offense
80	80	under this section on the basis that a federal determination
81	81	regarding the immigration status of the defendant is pending.
82	82	Sec. 51.03. ILLEGAL REENTRY BY CERTAIN ALIENS. (a) A
83	83	person who is an alien commits an offense if the person enters,
84	84	attempts to enter, or is at any time found in this state after the
85	85	person:
86	86	(1) has been denied admission to or excluded,
87	87	deported, or removed from the United States; or
88	88	(2) has departed from the United States while an order
89	89	of exclusion, deportation, or removal is outstanding.
90	90	(b) An offense under this section is a Class A misdemeanor,
91	91	except that the offense is:
92	92	(1) a felony of the third degree if:
93	93	(A) the defendant's removal was subsequent to a
94	94	conviction for commission of two or more misdemeanors involving
95	95	drugs, crimes against a person, or both;
96	96	(B) the defendant was excluded pursuant to 8
97	97	U.S.C. Section 1225(c) because the defendant was excludable under 8
98	98	U.S.C. Section 1182(a)(3)(B);
99	99	(C) the defendant was removed pursuant to the
100	100	provisions of 8 U.S.C. Chapter 12, Subchapter V; or
101	101	(D) the defendant was removed pursuant to 8
102	102	U.S.C. Section 1231(a)(4)(B); or
103	103	(2) a felony of the second degree if the defendant was
104	104	removed subsequent to a conviction for the commission of a felony.
105	105	(c) For purposes of Subsections (a) and (b), "removal"
106	106	includes any agreement in which an alien stipulates to removal
107	107	pursuant to a criminal proceeding under either federal or state
108	108	law.
109	109	(d) Notwithstanding any other law, a peace officer who is
110	110	charging a person detained for a violation of this section with
111	111	committing an offense under this section may, in lieu of arresting
112	112	the person or taking the person before a magistrate, remove the
113	113	person by:
114	114	(1) collecting available identifying information of
115	115	the person, which may include the use of photographic and biometric
116	116	measures that are cross-referenced with all relevant local, state,
117	117	and federal criminal databases;
118	118	(2) transporting the person to a port of entry; and
119	119	(3) ordering the person to return to the foreign
120	120	nation from which the person entered or attempted to enter.
121	121	(e) A court may not abate the prosecution of an offense
122	122	under this section on the basis that a federal determination
123	123	regarding the immigration status of the defendant is pending.
124	124	Sec. 51.04. REFUSAL TO COMPLY WITH ORDER TO RETURN TO
125	125	FOREIGN NATION. (a) A person who is an alien commits an offense if,
126	126	following a violation of Section 51.02 or 51.03, the person refuses
127	127	to comply with a peace officer's order under Section 51.02(e) or
128	128	51.03(d) to return to the foreign nation from which the person
129	129	entered or attempted to enter.
130	130	(b) An offense under this section is a felony of the second
131	131	degree.
132	132	Sec. 51.05. CERTAIN ACTS PROHIBITED. A peace officer
133	133	enforcing Section 51.02 or 51.03 may not:
134	134	(1) push a child into water;
135	135	(2) deny a child access to drinking water; or
136	136	(3) deny a child urgent medical care.
137	137	SECTION 2. Title 5, Civil Practice and Remedies Code, is
138	138	amended by adding Chapter 117 to read as follows:
139	139	CHAPTER 117. INDEMNIFICATION OF CERTAIN CLAIMS RELATING TO
140	140	ENFORCEMENT OF CERTAIN CRIMINAL OFFENSES INVOLVING ILLEGAL ENTRY
141	141	INTO THIS STATE
142	142	Sec. 117.001. DEFINITION. In this chapter, "damages"
143	143	includes any and all damages, fines, fees, penalties, court costs,
144	144	attorney's fees, or other assessments.
145	145	Sec. 117.002. LOCAL GOVERNMENT INDEMNIFICATION OF LOCAL
146	146	GOVERNMENT OFFICIALS, EMPLOYEES, AND CONTRACTORS. (a) Unless the
147	147	court or jury determines that the official, employee, or contractor
148	148	acted in bad faith, with conscious indifference, or with
149	149	recklessness, a local government shall indemnify an official,
150	150	employee, or contractor of the local government for damages arising
151	151	from a cause of action resulting from an action taken by the
152	152	official, employee, or contractor to enforce Chapter 51, Penal
153	153	Code, during the course and scope of the official's, employee's, or
154	154	contractor's office, employment, or contractual performance for or
155	155	service on behalf of the local government.
156	156	(b) Indemnification payments made under Subsection (a) by a
157	157	local government may not exceed:
158	158	(1) $100,000 to any one person or $300,000 for any
159	159	single occurrence in the case of personal injury or death; or
160	160	(2) $10,000 for a single occurrence of property
161	161	damage.
162	162	(c) A local government shall indemnify an official,
163	163	employee, or contractor of the local government for reasonable
164	164	attorney's fees incurred in defense of a criminal prosecution
165	165	against the official, employee, or contractor for an action taken
166	166	by the official, employee, or contractor to enforce Chapter 51,
167	167	Penal Code, during the course and scope of the official's,
168	168	employee's, or contractor's office, employment, or contractual
169	169	performance for or service on behalf of the local government.
170	170	(d) This section may not be construed to waive any statutory
171	171	limits on damages under state law.
172	172	Sec. 117.003. STATE INDEMNIFICATION OF STATE OFFICIALS,
173	173	EMPLOYEES, AND CONTRACTORS; ATTORNEY GENERAL REPRESENTATION. (a)
174	174	Unless the court or jury determines that the state official,
175	175	employee, or contractor acted in bad faith, with conscious
176	176	indifference, or with recklessness, the state shall indemnify an
177	177	elected or appointed state official or a state employee or
178	178	contractor for damages arising from a cause of action resulting
179	179	from an action taken by the official, employee, or contractor to
180	180	enforce Chapter 51, Penal Code, during the course and scope of the
181	181	official's, employee's, or contractor's office, employment, or
182	182	contractual performance for or service on behalf of the state.
183	183	(b) Notwithstanding any other law, indemnification under
184	184	Subsection (a) is not subject to any indemnification limits under
185	185	state law.
186	186	(c) The state shall indemnify a state official, employee, or
187	187	contractor for reasonable attorney's fees incurred in defense of a
188	188	criminal prosecution against the official, employee, or contractor
189	189	for an action taken by the official, employee, or contractor to
190	190	enforce Chapter 51, Penal Code, during the course and scope of the
191	191	official's, employee's, or contractor's office, employment, or
192	192	contractual performance for or service on behalf of the state.
193	193	(d) A state official, employee, or contractor who may be
194	194	entitled to indemnification under Subsection (a) is entitled to
195	195	representation by the attorney general, subject to Chapter 104, in
196	196	an action in connection with which the official, employee, or
197	197	contractor may be entitled to that indemnification.
198	198	(e) This section may not be construed to waive any statutory
199	199	limits on damages under state law.
200	200	Sec. 117.004. APPEAL TO SUPREME COURT. For a civil action
201	201	brought against a person who may be entitled under Section 117.002
202	202	or 117.003 to indemnification for damages awarded against the
203	203	person in the action, an appeal must be taken directly to the
204	204	supreme court.
205	205	Sec. 117.005. OTHER LAWS NOT AFFECTED. This chapter does
206	206	not affect a defense, immunity, or jurisdictional bar available to
207	207	the state or a local government or an official, employee, or
208	208	contractor of the state or a local government.
209	209	SECTION 3. It is the intent of the legislature that every
210	210	provision, section, subsection, sentence, clause, phrase, or word
211	211	in this Act, and every application of the provisions in this Act to
212	212	every person, group of persons, or circumstances, is severable from
213	213	each other. If any application of any provision in this Act to any
214	214	person, group of persons, or circumstances is found by a court to be
215	215	invalid for any reason, the remaining applications of that
216	216	provision to all other persons and circumstances shall be severed
217	217	and may not be affected.
218	218	SECTION 4. This Act takes effect December 1, 2023, if it
219	219	receives a vote of two-thirds of all the members elected to each
220	220	house, as provided by Section 39, Article III, Texas Constitution.
221	221	If this Act does not receive the vote necessary for effect on that
222	222	date, this Act takes effect on the 91st day after the last day of the
223	223	legislative session.