Texas 2023 - 88th 4th C.S.

Texas Senate Bill SB4 Compare Versions

Version 1 (Old)

Version 2 (New)

Old	New	Differences
1	1	S.B. No. 4
2	2
3	3
4	4	AN ACT
5	5	relating to prohibitions on the illegal entry into or illegal
6	6	presence in this state by a person who is an alien, the enforcement
7	7	of those prohibitions and certain related orders, including
8	8	immunity from liability and indemnification for enforcement
9	9	actions, and authorizing or requiring under certain circumstances
10	10	the removal of persons who violate those prohibitions; creating
11	11	criminal offenses.
12	12	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
13	13	SECTION 1. Title 1, Code of Criminal Procedure, is amended
14	14	by adding Chapter 5B to read as follows:
15	15	CHAPTER 5B. PROCEDURES FOR CERTAIN OFFENSES INVOLVING ILLEGAL
16	16	ENTRY INTO THIS STATE
17	17	Art. 5B.001. ENFORCEMENT PROHIBITED IN CERTAIN LOCATIONS.
18	18	Notwithstanding any other law, a peace officer may not arrest or
19	19	detain a person for purposes of enforcing a provision of Chapter 51,
20	20	Penal Code, if the person is on the premises or grounds of:
21	21	(1) a public or private primary or secondary school
22	22	for educational purposes;
23	23	(2) a church, synagogue, or other established place of
24	24	religious worship;
25	25	(3) a health care facility, as defined by Section
26	26	161.471, Health and Safety Code, including a facility a state
27	27	agency maintains or operates to provide health care, or the office
28	28	of a health care provider, as defined by Section 161.471, Health and
29	29	Safety Code, provided that the person is on the premises or grounds
30	30	of the facility or office for the purpose of receiving medical
31	31	treatment; or
32	32	(4) a SAFE-ready facility, as defined by Section
33	33	323.001, Health and Safety Code, or another facility that provides
34	34	forensic medical examinations to sexual assault survivors in
35	35	accordance with Chapter 323, Health and Safety Code, provided that
36	36	the person is on the premises or grounds of the facility for
37	37	purposes of obtaining a forensic medical examination and treatment.
38	38	Art. 5B.002. ORDER TO RETURN TO FOREIGN NATION. (a) A
39	39	magistrate during a person's appearance under Article 14.06 or
40	40	15.17 may, after making a determination that probable cause exists
41	41	for arrest for an offense under Section 51.02 or 51.03, Penal Code,
42	42	order the person released from custody and issue a written order in
43	43	accordance with Subsection (c).
44	44	(b) The judge in a person's case at any time after the
45	45	person's appearance before a magistrate under Article 14.06 or
46	46	15.17 may, in lieu of continuing the prosecution of or entering an
47	47	adjudication regarding an offense under Section 51.02 or 51.03,
48	48	Penal Code, dismiss the charge pending against the person and issue
49	49	a written order in accordance with Subsection (c).
50	50	(c) A written order authorized by Subsection (a) or (b) must
51	51	discharge the person and require the person to return to the foreign
52	52	nation from which the person entered or attempted to enter, and may
53	53	be issued only if:
54	54	(1) the person agrees to the order;
55	55	(2) the person has not previously been convicted of an
56	56	offense under Chapter 51, Penal Code, or previously obtained a
57	57	discharge under an order described by Subsection (a) or (b);
58	58	(3) the person is not charged with another offense
59	59	that is punishable as a Class A misdemeanor or any higher category
60	60	of offense; and
61	61	(4) before the issuance of the order, the arresting
62	62	law enforcement agency:
63	63	(A) collects all available identifying
64	64	information of the person, which must include taking fingerprints
65	65	from the person and using other applicable photographic and
66	66	biometric measures to identify the person; and
67	67	(B) cross-references the collected information
68	68	with:
69	69	(i) all relevant local, state, and federal
70	70	criminal databases; and
71	71	(ii) federal lists or classifications used
72	72	to identify a person as a threat or potential threat to national
73	73	security.
74	74	(d) On a person's conviction of an offense under Chapter 51,
75	75	Penal Code, the judge shall enter in the judgment in the case an
76	76	order requiring the person to return to the foreign nation from
77	77	which the person entered or attempted to enter. An order issued
78	78	under this subsection takes effect on completion of the term of
79	79	confinement or imprisonment imposed by the judgment.
80	80	(e) An order issued under this article must include:
81	81	(1) the manner of transportation of the person to a
82	82	port of entry, as defined by Section 51.01, Penal Code; and
83	83	(2) the law enforcement officer or state agency
84	84	responsible for monitoring compliance with the order.
85	85	(f) An order issued under this article must be filed:
86	86	(1) with the county clerk of the county in which the
87	87	person was arrested, for an order described by Subsection (a); or
88	88	(2) with the clerk of the court exercising
89	89	jurisdiction in the case, for an order described by Subsection (b)
90	90	or (d).
91	91	(g) Not later than the seventh day after the date an order is
92	92	issued under this article, the law enforcement officer or state
93	93	agency required to monitor compliance with the order shall report
94	94	the issuance of the order to the Department of Public Safety for
95	95	inclusion in the computerized criminal history system under Chapter
96	96	66.
97	97	Art. 5B.003. ABATEMENT OF PROSECUTION ON BASIS OF
98	98	IMMIGRATION STATUS DETERMINATION PROHIBITED. A court may not abate
99	99	the prosecution of an offense under Chapter 51, Penal Code, on the
100	100	basis that a federal determination regarding the immigration status
101	101	of the defendant is pending or will be initiated.
102	102	SECTION 2. Title 10, Penal Code, is amended by adding
103	103	Chapter 51 to read as follows:
104	104	CHAPTER 51. ILLEGAL ENTRY INTO THIS STATE
105	105	Sec. 51.01. DEFINITIONS. In this chapter:
106	106	(1) "Alien" has the meaning assigned by 8 U.S.C.
107	107	Section 1101, as that provision existed on January 1, 2023.
108	108	(2) "Port of entry" means a port of entry in the United
109	109	States as designated by 19 C.F.R. Part 101.
110	110	Sec. 51.02. ILLEGAL ENTRY FROM FOREIGN NATION. (a) A
111	111	person who is an alien commits an offense if the person enters or
112	112	attempts to enter this state directly from a foreign nation at any
113	113	location other than a lawful port of entry.
114	114	(b) An offense under this section is a Class B misdemeanor,
115	115	except that the offense is a state jail felony if it is shown on the
116	116	trial of the offense that the defendant has been previously
117	117	convicted of an offense under this section.
118	118	(c) It is an affirmative defense to prosecution under this
119	119	section that:
120	120	(1) the federal government has granted the defendant:
121	121	(A) lawful presence in the United States; or
122	122	(B) asylum under 8 U.S.C. Section 1158;
123	123	(2) the defendant's conduct does not constitute a
124	124	violation of 8 U.S.C. Section 1325(a); or
125	125	(3) the defendant was approved for benefits under the
126	126	federal Deferred Action for Childhood Arrivals program between June
127	127	15, 2012, and July 16, 2021.
128	128	(d) The following federal programs do not provide an
129	129	affirmative defense for purposes of Subsection (c)(1):
130	130	(1) the Deferred Action for Parents of Americans and
131	131	Lawful Permanent Residents program; and
132	132	(2) any program not enacted by the United States
133	133	Congress that is a successor to or materially similar to the program
134	134	described by Subsection (c)(3) or Subdivision (1).
135	135	Sec. 51.03. ILLEGAL REENTRY BY CERTAIN ALIENS. (a) A
136	136	person who is an alien commits an offense if the person enters,
137	137	attempts to enter, or is at any time found in this state after the
138	138	person:
139	139	(1) has been denied admission to or excluded,
140	140	deported, or removed from the United States; or
141	141	(2) has departed from the United States while an order
142	142	of exclusion, deportation, or removal is outstanding.
143	143	(b) An offense under this section is a Class A misdemeanor,
144	144	except that the offense is:
145	145	(1) a felony of the third degree if:
146	146	(A) the defendant's removal was subsequent to a
147	147	conviction for commission of two or more misdemeanors involving
148	148	drugs, crimes against a person, or both;
149	149	(B) the defendant was excluded pursuant to 8
150	150	U.S.C. Section 1225(c) because the defendant was excludable under 8
151	151	U.S.C. Section 1182(a)(3)(B);
152	152	(C) the defendant was removed pursuant to the
153	153	provisions of 8 U.S.C. Chapter 12, Subchapter V; or
154	154	(D) the defendant was removed pursuant to 8
155	155	U.S.C. Section 1231(a)(4)(B); or
156	156	(2) a felony of the second degree if the defendant was
157	157	removed subsequent to a conviction for the commission of a felony.
158	158	(c) For purposes of this section, "removal" includes an
159	159	order issued under Article 5B.002, Code of Criminal Procedure, or
160	160	any other agreement in which an alien stipulates to removal
161	161	pursuant to a criminal proceeding under either federal or state
162	162	law.
163	163	Sec. 51.04. REFUSAL TO COMPLY WITH ORDER TO RETURN TO
164	164	FOREIGN NATION. (a) A person who is an alien commits an offense if:
165	165	(1) the person has been charged with or convicted of an
166	166	offense under this chapter;
167	167	(2) a magistrate or judge, as applicable, has issued
168	168	an order under Article 5B.002, Code of Criminal Procedure, for the
169	169	person to return to the foreign nation from which the person entered
170	170	or attempted to enter; and
171	171	(3) the person refuses to comply with the order.
172	172	(b) An offense under this section is a felony of the second
173	173	degree.
174	174	SECTION 3. Title 5, Civil Practice and Remedies Code, is
175	175	amended by adding Chapter 117 to read as follows:
176	176	CHAPTER 117. LIABILITY FOR AND INDEMNIFICATION OF CERTAIN CLAIMS
177	177	RELATING TO ENFORCEMENT OF CERTAIN CRIMINAL OFFENSES INVOLVING
178	178	ILLEGAL ENTRY INTO THIS STATE
179	179	Sec. 117.001. DEFINITION. In this chapter, "damages"
180	180	includes any and all damages, fines, fees, penalties, court costs,
181	181	attorney's fees, or other assessments.
182	182	Sec. 117.002. CIVIL IMMUNITY FOR AND INDEMNIFICATION OF
183	183	LOCAL GOVERNMENT OFFICIALS, EMPLOYEES, AND CONTRACTORS. (a)
184	184	Except as provided by Subsection (d), a local government official,
185	185	employee, or contractor is immune from liability for damages
186	186	arising from a cause of action under state law resulting from an
187	187	action taken by the official, employee, or contractor to enforce
188	188	Chapter 51, Penal Code, or an order issued under Article 5B.002,
189	189	Code of Criminal Procedure, during the course and scope of the
190	190	official's, employee's, or contractor's office, employment, or
191	191	contractual performance for or service on behalf of the local
192	192	government.
193	193	(b) Subject to Subsection (c) and except as provided by
194	194	Subsection (d), a local government shall indemnify an official,
195	195	employee, or contractor of the local government for damages arising
196	196	from a cause of action under federal law resulting from an action
197	197	taken by the official, employee, or contractor to enforce Chapter
198	198	51, Penal Code, or an order issued under Article 5B.002, Code of
199	199	Criminal Procedure, during the course and scope of the official's,
200	200	employee's, or contractor's office, employment, or contractual
201	201	performance for or service on behalf of the local government.
202	202	(c) Indemnification payments made under Subsection (b) by a
203	203	local government may not exceed:
204	204	(1) $100,000 to any one person or $300,000 for any
205	205	single occurrence in the case of personal injury or death; or
206	206	(2) $10,000 for a single occurrence of property
207	207	damage.
208	208	(d) Subsections (a) and (b) do not apply if the court or jury
209	209	determines that the local government official, employee, or
210	210	contractor acted in bad faith, with conscious indifference, or with
211	211	recklessness.
212	212	(e) A local government shall indemnify an official,
213	213	employee, or contractor of the local government for reasonable
214	214	attorney's fees incurred in defense of a criminal prosecution
215	215	against the official, employee, or contractor for an action taken
216	216	by the official, employee, or contractor to enforce Chapter 51,
217	217	Penal Code, or an order issued under Article 5B.002, Code of
218	218	Criminal Procedure, during the course and scope of the official's,
219	219	employee's, or contractor's office, employment, or contractual
220	220	performance for or service on behalf of the local government.
221	221	(f) This section may not be construed to waive any statutory
222	222	limits on damages under state law.
223	223	Sec. 117.003. CIVIL IMMUNITY FOR AND INDEMNIFICATION OF
224	224	STATE OFFICIALS, EMPLOYEES, AND CONTRACTORS. (a) Except as
225	225	provided by Subsection (d), an elected or appointed state official
226	226	or a state employee or contractor is immune from liability for
227	227	damages arising from a cause of action under state law resulting
228	228	from an action taken by the official, employee, or contractor to
229	229	enforce Chapter 51, Penal Code, or an order issued under Article
230	230	5B.002, Code of Criminal Procedure, during the course and scope of
231	231	the official's, employee's, or contractor's office, employment, or
232	232	contractual performance for or service on behalf of the state.
233	233	(b) Except as provided by Subsection (d), the state shall
234	234	indemnify an elected or appointed state official or a state
235	235	employee or contractor for damages arising from a cause of action
236	236	under federal law resulting from an action taken by the official,
237	237	employee, or contractor to enforce Chapter 51, Penal Code, or an
238	238	order issued under Article 5B.002, Code of Criminal Procedure,
239	239	during the course and scope of the official's, employee's, or
240	240	contractor's office, employment, or contractual performance for or
241	241	service on behalf of the state.
242	242	(c) Notwithstanding any other law, an indemnification
243	243	payment made under Subsection (b) is not subject to an
244	244	indemnification limit under the laws of this state.
245	245	(d) Subsections (a) and (b) do not apply if the court or jury
246	246	determines that the state official, employee, or contractor acted
247	247	in bad faith, with conscious indifference, or with recklessness.
248	248	(e) The state shall indemnify a state official, employee, or
249	249	contractor for reasonable attorney's fees incurred in defense of a
250	250	criminal prosecution against the official, employee, or contractor
251	251	for an action taken by the official, employee, or contractor to
252	252	enforce Chapter 51, Penal Code, or an order issued under Article
253	253	5B.002, Code of Criminal Procedure, during the course and scope of
254	254	the official's, employee's, or contractor's office, employment, or
255	255	contractual performance for or service on behalf of the state.
256	256	(f) A state official, employee, or contractor who may be
257	257	entitled to indemnification under Subsection (b) is entitled to
258	258	representation by the attorney general, subject to Chapter 104, in
259	259	an action in connection with which the official, employee, or
260	260	contractor may be entitled to that indemnification.
261	261	(g) This section may not be construed to waive any statutory
262	262	limits on damages under state law.
263	263	Sec. 117.004. APPEAL TO SUPREME COURT. For a civil action
264	264	brought against a person who may be entitled to immunity or
265	265	indemnification under Section 117.002 or 117.003, an appeal must be
266	266	taken directly to the supreme court.
267	267	Sec. 117.005. OTHER LAWS NOT AFFECTED. This chapter does
268	268	not affect a defense, immunity, or jurisdictional bar available to
269	269	the state or a local government or an official, employee, or
270	270	contractor of the state or a local government.
271	271	SECTION 4. Subchapter B, Chapter 42A, Code of Criminal
272	272	Procedure, is amended by adding Article 42A.059 to read as follows:
273	273	Art. 42A.059. PLACEMENT ON COMMUNITY SUPERVISION
274	274	PROHIBITED FOR CERTAIN OFFENSES INVOLVING ILLEGAL ENTRY INTO THIS
275	275	STATE. Notwithstanding any other provision of this chapter, a
276	276	defendant is not eligible for community supervision, including
277	277	deferred adjudication community supervision, under this chapter if
278	278	the defendant is charged with or convicted of an offense under
279	279	Chapter 51, Penal Code.
280	280	SECTION 5. Article 66.102, Code of Criminal Procedure, is
281	281	amended by adding Subsection (i) to read as follows:
282	282	(i) In addition to the information described by this
283	283	article, information in the computerized criminal history system
284	284	must include any order issued under Article 5B.002.
285	285	SECTION 6. Section 508.145(a), Government Code, is amended
286	286	to read as follows:
287	287	(a) An inmate is not eligible for release on parole if the
288	288	inmate is under sentence of death, serving a sentence of life
289	289	imprisonment without parole, or serving a sentence for any of the
290	290	following offenses under the Penal Code:
291	291	(1) Section 20A.03, if the offense is based partly or
292	292	wholly on conduct constituting an offense under Section
293	293	20A.02(a)(5), (6), (7), or (8);
294	294	(2) Section 21.02; [or]
295	295	(3) Section 22.021, if the offense is punishable under
296	296	Subsection (f) of that section; or
297	297	(4) Section 51.03 or 51.04.
298	298	SECTION 7. Section 508.149, Government Code, is amended by
299	299	adding Subsection (a-1) to read as follows:
300	300	(a-1) An inmate serving a sentence for an offense under
301	301	Section 51.03 or 51.04, Penal Code, may not be released to mandatory
302	302	supervision.
303	303	SECTION 8. It is the intent of the legislature that every
304	304	provision, section, subsection, sentence, clause, phrase, or word
305	305	in this Act, and every application of the provisions in this Act to
306	306	every person, group of persons, or circumstances, is severable from
307	307	each other. If any application of any provision in this Act to any
308	308	person, group of persons, or circumstances is found by a court to be
309	309	invalid for any reason, the remaining applications of that
310	310	provision to all other persons and circumstances shall be severed
311	311	and may not be affected.
312	312	SECTION 9. This Act takes effect on the 91st day after the
313	313	last day of the legislative session.
314	314	______________________________ ______________________________
315	315	President of the Senate Speaker of the House
316	316	I hereby certify that S.B. No. 4 passed the Senate on
317	317	November 9, 2023, by the following vote: Yeas 17, Nays 11.
318	318	______________________________
319	319	Secretary of the Senate
320	320	I hereby certify that S.B. No. 4 passed the House on
321	321	November 14, 2023, by the following vote: Yeas 83, Nays 61, one
322	322	present not voting.
323	323	______________________________
324	324	Chief Clerk of the House
325	325	Approved:
326	326	______________________________
327	327	Date
328	328	______________________________
329	329	Governor