A bill establishing a state law enforcement agency devoted to enforcing immigration laws passed the Texas House Wednesday afternoon following a marathon legislative day Tuesday that went past midnight.
The legislation establishes the Border Protection Unit, whose chief would be appointed by Gov. Greg Abbott. Officers would 鈥渁rrest, apprehend or detain鈥� people who illegally cross into the United States and 鈥渞epel鈥� people who attempt to enter the country.
Officers would also be able to return migrants to Mexico and conduct enhanced security checks of cargo vehicles to search for drugs and people being smuggled into the country.
The controversial measure was originally thought to be defeated late Tuesday when the language that created the BPU was included in House bill 20, by state Rep. Matt Schaefer, R-Tyler. HB20 was more expansive and would have also made trespassing a state felony. Democrats successfully derailed that effort when state Rep. Rafael Anchia, D-Dallas, called a point of order on the legislation, a tactic to stop debate on a bill and send it back to committee, about an hour after debate began. The bill was sent back to committee, but the deadline to advance bills out of committees was Monday. And the final House calendar for major House bills, which lists items that are eligible for debate, was issued Tuesday.
But the Democrats鈥� victory was short-lived. Hours later, language from HB 20 was added as an to House bill 7, authored by state Rep. Ryan Guillen, R-Rio Grande City. HB 7 would fund several border and border-security initiatives.
Democrats have decried the proposed Border Protection Unit, arguing it would codify harassment of minorities carried out by a hastily crafted law enforcement agency that is trying to do the federal government鈥檚 job. But the measure was declared a priority by House Speaker Dade Phelan and defended by Shaefer as necessary due to the federal government's inaction on immigration.
Texas鈥� southern border has seen near-record levels of unauthorized migration since the Biden administration took office, and seizures of the deadly synthetic opioid fentanyl, which is mostly carried into the U.S. by Americans, have skyrocketed.
The debate came on the eve of the public health order known as Title 42 expiring. That policy, which expires Thursday night, allows federal agents to immediately expel migrants before they can apply for asylum. It鈥檚 near-end has prompted tens of thousands of migrants, most from South and Central America, to wait in northern Mexico.
鈥淭he simple truth is that the ongoing acts of aggression by violent, transnational criminal cartels are putting the lives of Texans and Americans in imminent danger,鈥� Schaefer said. 鈥淗ow many more people will die from fentanyl poisoning? How many more landowners would suffer damage to property from trespassers and smugglers?鈥�
During the debate Schaefer was asked repeatedly what kind of force members of the unit would be authorized to use, when they would use it, and how they would return migrants to Mexico.
He didn鈥檛 offer specifics but instead said it would be up to the regulations set forth by the Public Safety Commission.
鈥淲e are going to make sure that Texans are protected,鈥� he said. 鈥淲e are legislators, we are not executives.鈥�
During debate over HB 7鈥檚 final passage Wednesday however, Democrats were able to add several amendments that addressed some of their concerns about BPU.
They included two by state Rep. Armando Walle, D-Houston, including one that would prevent BPU officers from detaining migrant children younger than 10 in holding facilities.
Walle鈥檚 other amendment mandates that members of the BPU be commissioned peace officers under regulations set forth by the state. The original language of HB20 called for the unit chief to employ members but didn鈥檛 specify the required training for noncommissioned officers, which led opponents of the legislation to label the BPU a 鈥渧igilante鈥� force or 鈥渕ilitia.鈥�
As passed, HB 7 also requires a county commissioners鈥� court鈥檚 approval for the BPU to operate in that region. State Rep. Tony Tinderholt, R-Fort Worth, tried to remove that language, arguing it would essentially gut the bill.
鈥淲hat I am saying through this amendment is no county can say 鈥榥o鈥� to a Border Protection Unit to protect Texans and Americans,鈥� he told state Rep. Joe Moody, D-El Paso, during debate on the amendment. 鈥淚f you鈥檙e an elected official that says you don鈥檛 want it, you don鈥檛 want to protect your community, we鈥檙e going to protect it anyway.鈥�
Tinderholt鈥檚 amendment failed.
State Rep. Diego Bernal, D-San Antonio, successfully amended the bill to prohibit BPU officers from using their personal vehicles to conduct traffic stops. He asked lawmakers how they would react if a random vehicle attempted to pull them over.
鈥淵ou don鈥檛 know who they are, you don鈥檛 know what they want, and you think you and your family鈥檚 lives are in danger. You鈥檙e probably going to do something about that,鈥� he said. 鈥淭hat鈥檚 a recipe for disaster.鈥�
It鈥檚 unclear if the amendments will remain once the legislation is debated in the Senate. Any discrepancies would force both chambers to hash out the differences.
The proposed law enforcement agency will likely be challenged in court as opponents and some Democrats have questioned whether it conflicts with federal law or is intended to supplant federal authority. (Immigration enforcement is generally under the purview of the federal government.) It鈥檚 also been criticized by Democrats as a possible vehicle to challenge established immigration law at the highest levels.
In 2012, the U.S. Supreme Court some of the major provisions of legislation in Arizona that sought to expand state-based immigration. The court ruled that most provisions of that law were preempted by federal statute.
Schaefer took issue with questioning by state Rep. Gina Hinojosa, D-Austin, who asked if Border Protection Unit officers would be under the direction of federal agents. He said that members of the BPU would 鈥渙perate consistent with the United States Constitution鈥� and report to the governor. When pressed, he quipped: 鈥淵ou are trying to get me to say something that鈥檚 not something I intend to say.鈥�
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