A panel of state lawmakers advanced a sweeping, state-based immigration-enforcement bill on Wednesday after stripping the legislation of some of its most controversial elements.
House Bill 4, which creates a new state crime for unauthorized entry into Texas from a foreign country, was voted out by the Texas Senate Committee on Border Security on Wednesday. But the committee removed a key provision: Allowing a state or local police officer to return a migrant to the border without first going through the judicial process.
The Senate鈥檚 version also includes language requiring an officer have probable cause to believe an unauthorized immigrant crossed into Texas unlawfully before making an arrest. That was absent from the Texas House鈥檚 proposal, which was approved last week after an intense, hours-long debate.
Under the new language of the bill, an undocumented immigrant would be charged with a class B misdemeanor and placed in a state facility, then transported to a port of entry and transferred to a federal officer after they completed their sentence.
State Sen. Brian Birdwell, R-Granbury, the chair of the committee and sponsor of the bill, said the move ensures that the state law, if passed, doesn鈥檛 interfere with the federal government, which has purview over immigration enforcement.
鈥淸The original House bill] was a breach of the 10th Amendment preclusion on states to not perform the duties expressly given to the federal government,鈥� he said.
Birdwell added the probable cause language was added to address concerns about whether a police officer would be able to arrest an immigrant anywhere in the state without proof they entered Texas illegally.
鈥淚f you have someone you believe is in the country illegally you don鈥檛 know if they came through California, Arizona, New Mexico or if they came 10 years ago or 10 minutes after this bill was passed, unless you actually observe the actual offense,鈥� he said.
Despite those concessions, Democrats and other opponents of HB 4 said the bill still subjects minorities and people of color to racial profiling and would cripple border communities鈥� local budgets with the costs associated with potentially housing tens of thousands of migrants.
Adam Haynes, the policy director for the Texas Conference of Urban Counties, applauded the committee鈥檚 efforts to address some of the concerns, but said the proposed legislation will still hit local governments directly in their pocketbooks.
鈥淲e have a prohibition against putting misdemeanants into state prisons, county jails are the ones that bear that responsibility, we are going to bear that cost,鈥� he said. 鈥淵es, the federal government over multiple administrations has failed the state of Texas. The status quo is not working. But don鈥檛 take the federal government鈥檚 failures and put it on the back of Texas property taxpayers. That鈥檚 what this bill does.鈥�
Charles Reed, an administrator with Dallas County, said that the bill would likely result in about 75,000 arrests, but there are only about 3,000 jail beds available under Operation Lone Star, the state鈥檚 border mission that began more than two years ago.
鈥淎nd there are only 98,000 county jail beds, they are already at 72% capacity,鈥� he said. 鈥淚t is mathematically impossible to ft this population into the available jail beds.鈥�
State Sen. Cesar Blanco, D-El Paso, said his county has already determined that it would need a new detention facility with 400 beds to have enough space to house immigrants prosecuted under the bill.
鈥淸That鈥檚] at a cost of $162 million and $60 million annually, just to maintain the operations, and the detentions and the prosecution and the indigent defense and court costs,鈥� he said.
鈥淟ipstick on a pig鈥�
Several immigration lawyers testified against the bill Wednesday and stressed that, despite the changes, the bill still conflicts with federal immigration law.
Lisa Graybill, the vice president of law and policy at the National Immigration Law Center, said HB 4 would require a state court to determine a person鈥檚 immigration status, which is a matter for federal immigration judges.
鈥淸House Bill 4] is squarely preempted by federal law, no matter how many times folks on this panel say it isn鈥檛,鈥� she testified. 鈥淵ou cannot put lipstick on this pig, this is inarguably the state of Texas attempting to regulate immigration and the federal government already occupies that space.鈥�
The state鈥檚 Republican leadership is unfazed by the preemption argument however and is likely anticipating a legal challenge that could end up before the United States Supreme Court.
In 2012, the U.S. Supreme Court struck down an Arizona law that sought to expand state powers on immigration enforcement. The court ruled that a provision of the law allowing law enforcement to arrest a person without a warrant and based on their immigration status violated federal law.
Attorney General Ken Paxton said hearing in May that he thought the decision by the high court should be revisited under the court鈥檚 current conservative majority.
The bill passed out of the committee 3-2 on a party line vote and now heads to the full Senate for consideration.
Got a tip? Email Juli谩n Aguilar at jaguilar@kera.org.You can follow Juli谩n on Twitter @nachoaguilar.
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