Senate Bill 4 Creates New State Immigration Criminal Offenses and Authorizes and Requires Texas State Judges to Issue Orders to Return to Foreign Nation
SB 4 creates three new state immigration criminal offenses of Illegal Entry, Illegal Reentry and Refusal to Return to Foreign Nation. SB 4 also authorizes and requires state judges to issue orders to return persons charged under with Illegal Entry, Illegal Reentry and Refusal to Return to Foreign Nation to the foreign nation from which they entered Texas.
SB 4 Creates Three New State Immigration Offenses
- Illegal Entry
The new crime of Illegal Entry makes it unlawful under Texas Penal Code Sec. 51.02 for a non-citizen to enter Texas from a foreign nation at any location other than a port of entry punishable by up to six months in jail or up to two years in prison if a person has been previously convicted of this offense. A “port of entry” is defined as one designated by 19 C.F.R. 101 which refers to a place designated by the President, Treasury, or Congress to accept customs and presumably to process travelers.
There are Four Affirmative Defenses
There are four affirmative defenses that can be raised to prosecution at the trial for Illegal Entry. The first affirmative defense is that the person has “lawful presence” in the United States. The second affirmative defense is that the person has been granted asylum. The third affirmative defense is that the person’s conduct would not constitute a crime under the federal illegal entry statute of 8 USC 1325(a). The fourth affirmative defense is that a person was approved for Deferred Action for Childhood Arrivals (“DACA”) between June 15, 2012, and July 16, 2021.
Affirmative Defenses Can Only be Raised at Trial (after arrest and prosecution)
Even if a person qualifies for one of the four affirmative defenses, they will still be arrested and will not even be able to raise the affirmative defense until after arrest and imprisonment at their trial. That means that any non-citizen who entered Texas at a place other than a port of entry will be arrested even if they are lawfully present in the United States. For example, someone who is a lawful permanent resident, a DACA recipient or a person who had been granted asylum, would still be arrested and will have to prove at their trial one of the four affirmative defenses beyond a preponderance of the evidence. In addition, “lawful presence” is not defined in state or federal law and can include people who have been processed by federal immigration authorities and have authorization to remain in the United States, including immigrants who have been granted parole or work authorization by the federal government. This means that even someone here with federal government permission can still be prosecuted, removed and/or convicted of Illegal Entry.
- Illegal Reentry
The new crime of Illegal Reentry makes it unlawful under Texas Penal Code Sec. 51.03 for a non-citizen to enter, attempt to enter, or be found in Texas after the person has been removed or ordered removed (or denied admission, excluded or deported) from the United States and is punishable by up to one year in jail and up to twenty years in prison depending on whether the person has prior criminal convictions.
There are no affirmative defenses to Illegal Reentry. This means that any person who had been removed or ordered removed (or denied admission, excluded or deported) by the federal or state government and was then found entering or found anywhere in Texas will be subject to prosecution, conviction and removal for Illegal Reentry even if they had subsequently been granted lawful status.
- Refusal to Return to Foreign Nation
The new crime of Refusal to Return to Foreign Nation makes it unlawful under Texas Penal Code Sec. 51.04 for a non-citizen to refuse to comply with an order to return to a foreign nation punishable by up to twenty years in prison. Under SB4 a person will be ordered to return to the foreign nation they entered
Texas from even if they are not a citizen of that nation and will be prosecuted for Refusal to Return to Foreign Nation even if they are unable to comply with the order or change their mind after the order has been entered.
SB 4 Authorizes and Requires Judges to Order Non-Citizens to Return to Foreign Nation
SB 4 provides three ways a non-citizen may be ordered by a state judge to return to a foreign nation.
- Pre-adjudication by a Magistrate Judge
The first way a person can be ordered to return to a foreign nation is after a person is arrested for Illegal Entry or Illegal Reentry, a magistrate judge during magistration may order the person be released and ordered to return to the foreign nation where the person entered if the person agrees to the order, has not been previously convicted of Illegal Entry or Illegal Reentry and if the person is not charged with another offense punishable as a Class A Misdemeanor or higher.
- Pre-adjudication by a Judge
The second way a person can be ordered to return to a foreign nation is after a person is arrested for and magistrated for Illegal Entry or Illegal Reentry, a judge may at any time and in lieu of continuing the prosecution order the person to return to the foreign nation where the person entered if the person agrees to the order, has not been previously convicted of Illegal Entry or Illegal Reentry and if the person is not charged with another offense punishable as a Class A Misdemeanor or higher.
- Post-adjudication by a Judge
The third way a person can be ordered to return to a foreign nation is after conviction of Illegal Entry or Illegal Reentry, a judge must order the person to return to the foreign nation where the person entered.
Other Provisions of SB 4
- Abatement Prohibited
Article 5B.003 specifically prohibits a court from abating prosecution of Illegal Entry or Illegal Reentry if a federal determination regarding the immigration status of the person is pending or will be initiated. A non-citizen with a pending immigration application (or expected immigration application) will be prosecuted and ordered removed from the country even if the person is eligible for relief. Not only will proof of a pending immigration application not be considered as an affirmative defense but it may also incriminate the person by providing proof the person is a non-citizen and entered Texas without inspection.
- Ineligibility for Community Supervision, Release on Parole and Release to Mandatory Supervision
Article 42A.059 makes a person convicted of Illegal Entry ineligible for community supervision (probation) which means that anyone convicted will have to serve jail time. Section 508.145 of the Government Code is amended to provide that a person convicted of felony Illegal Reentry or Refusal to Return to Foreign Nation may not be released on parole or mandatory supervision. Anyone convicted of Illegal Entry, Illegal Reentry or Refusal to Return to Foreign Nation will have to serve their entire sentence of imprisonment and will be required to be removed to a foreign nation after completion of their sentence.
- Liability for and Indemnification of Certain Claims Relating to Enforcement of Certain Criminal Offenses Involving Illegal Entry into Texas
SB4 amends the Civil Practice and Remedies Code to provide immunity from liability and indemnification for damages arising from enforcement of Illegal Entry, Illegal Reentry and Return to Foreign Nation.
Questions About SB4
How can these laws be enforced? SB4 can be enforced during any of the three levels of police encounters that can occur between law enforcement and members of the public which will lead to an arrest and removal for an offense under SB4: 1.) consensual encounters which require no suspicion of wrongdoing; 2.) investigatory stop which requires reasonable suspicion of criminal activity; and 3.) probable cause to arrest.
Consensual Encounter: Anyone can be questioned at any time and at any place (other than the areas specifically excepted) about citizenship status and whether the person entered Texas from a foreign nation at a place other than a lawful port of entry. Law enforcement does not have to have a reason or any basis that a person has committed a crime or done anything wrong to have a “consensual encounter” and begin to question a person as to how they entered Texas and whether a person has ever been removed or ordered removed from the United States. Even though compliance with a consensual encounter is not mandatory and a person is free to decline to speak with law enforcement and leave the situation, any incriminating information provided during this encounter can lead to an arrest. Law enforcement officers do not have to provide Miranda warnings and are not required to advise the person that compliance with questioning is not required during consensual encounters. If a non-citizen (or a person unable to prove citizenship status at the time of questioning) admits to having entered Texas from a foreign nation at a place other than a port of entry, that is sufficient probable cause to arrest and remove that person for Illegal Entry. Similarly, if a non-citizen has previously been removed from Texas (or denied admission, excluded or deported or departed the country after being so ordered) and is found anywhere in Texas by law enforcement, that is sufficient probable cause to arrest and detain that person for Illegal Reentry. Examples of consensual encounters include engaging in conversation with someone at a job site, walking down the street or a parking lot.
Investigatory Stop: Law enforcement can make an investigatory stop and detention based upon reasonable suspicion that a person is involved in criminal activity. As it relates to Illegal Entry, reasonable suspicion could include any facts and circumstances that cause law enforcement to believe a person is a non-citizen who entered Texas from a foreign nation at a place other than a port of entry. During an investigative detention, although the person is not allowed to leave, they do not have to make any statements (although law enforcement is also not required to provide Miranda warnings prior to any questioning).
Arrest Based on Probable Cause: If a law enforcement officer has probable cause to believe a person is a has entered Texas from a foreign nation from a place other than a port of entry, that is sufficient to arrest that person for Illegal Entry. Probable cause may be based solely on answers to questions alone and may be formed during a consensual encounter or investigatory stop where Miranda warnings do not have to be read before questioning (Miranda warnings are only required after a person has been taken into custody and is being interrogated). Affirmative defenses of lawful presence, DACA and a grant of asylum will not defeat probable cause and will not be considered during an arrest or magistration for Illegal Entry.
Similarly, if a law enforcement has knowledge (either though a database check or through questioning) that a non-citizen has previously been removed from Texas (or denied admission, excluded or deported) and is found anywhere in Texas, that is sufficient probable cause to arrest and detain that person for Illegal Reentry (if they have previously been removed from the United States). There are no affirmative defenses that can be raised at any time for an Illegal Reentry charge.
Where can these laws be enforced? There is no requirement that a peace officer physically observe a person enter Texas outside of a port of entry so any non-citizen, or even a citizen that cannot prove he/she is a citizen, anywhere in Texas will be subject to being questioned, detained and arrested under the new offenses of Illegal Entry, Illegal Reentry and Refusal to Return to Foreign Nation. The only exceptions are that a person cannot be arrested for Illegal Entry or Illegal Reentry at a primary or secondary school, a church, synagogue, or other established place of worship. A person cannot be arrested at a health care facility or SAFE-ready facility but only that person is there to receive medical treatment so a person could still be arrested at a health care facility or SAFE-ready facility if they are there accompanying a family member or friend who is receiving treatment. Notably, SB4 does not prohibit enforcement or arrests on college or university campuses.
Who can enforce these laws? Any peace officer in Texas, as defined under Texas Code of Criminal Procedure Article 2.12 (listing 35 distinct types of peace officers) can enforce these laws and arrest people who they believe are non-citizens for Illegal Entry, Illegal Reentry and Refusal to Return to Foreign Nation anywhere in Texas.
Can a person with lawful status still be prosecuted and removed from the United States? If a person is a non-citizen, or is unable to prove citizenship status, the person can be arrested for Illegal Entry if the peace officer has probable cause to believe they entered Texas from a foreign nation at a place other than a lawful port of entry. This means that even people that have lawful status, including a grant of asylum or DACA, will still be subject to arrest for Illegal Entry and can only raise those affirmative defenses at the time of trial. Also, even if a person has lawful status, if the person is a non-citizen that has previously been removed from Texas (or departed the country after being denied admission, excluded or deported) and is found anywhere in Texas by law enforcement the person will be subject to arrest for Illegal Reentry and will not be able to raise lawful presence as an affirmative defense.
What if I have an immigration application pending? It is not a defense to prosecution that a person has an immigration application pending so the person will still be subject to arrest, the court will not abate (or stop) the prosecution, and a person cannot use the fact of a pending application as an affirmative defense at your trial.
When will SB4 become law and what is the statute of limitations?
Governor Abbott signed SB4 into law on December 18, 2024, and unless there is a successful lawsuit that prevents it from being implemented, it will go into effect March 5, 2024. The statute of limitations for misdemeanor offenses in Texas is 2 years which means that a law enforcement officer may arrest anyone for Illegal Entry if the person is a non-citizen who entered Texas from a foreign nation at a place other than a port of entry within the previous two years.
Although there are other legal challenges that may be made regarding an ex post facto application, that requires having a lawyer raise those challenges after arrest, prosecution and imprisonment (presuming the person did not previously accept removal). While the Illegal Reentry charge also has a two-year statute of limitations, it is considered a continuing offense, so the time does not start running until the person is found in Texas. That means that any prior removal, including one that occurred decades ago, would still subject a non-citizen to prosecution for Illegal Reentry if they are ever found anywhere in Texas at any time. The statute of limitations for felony Illegal Reentry and felony Failure to Comply with Order to Return is 3 years.
How can people and communities in Texas prepare for SB4?
People and communities throughout Texas should prepare for SB4 by providing awareness and education to ensure that immigrants and citizens are not wrongfully detained, arrested and removed (deported) by state law enforcement. It is important that community members understand what type of conduct is criminalized, as well as what the Constitutional rights are of all individuals, regardless of immigration status, and how to properly assert and invoke Constitutional rights to minimize the risks of arrest and removal for Illegal Entry and Illegal Reentry.
Fourth Amendment
The 4th Amendment protects all people against unreasonable searches and seizures and provides that a person never has to agree to a search of their home, vehicle, or individual property without a warrant. Invoking the 4th Amendment protections includes not consenting to a search of personal belongings, including identification documents.
Unless a person is driving (in which case the person must provide a valid Driver’s License and insurance) no one is required to show identification to a state law enforcement officer. The only information that a person must ever provide is name, residence address and date of birth after arrest if a peace officer requests the information after a lawful arrest (in order to avoid a further prosecution for Failure to Identify under Texas Penal Code 38.02). Providing law enforcement foreign identification documents may establish probable cause the person is a non-citizen that entered Texas from a foreign nation at a place other than a port of entry (for example, if a foreign passport does not have an I-94/proof of admission at a port of entry or if a document establishes the person entered the United States without admission). For that reason, any person who does not have a US passport, a Texas ID or Driver’s License, or a document that proves they entered Texas from a port of entry should invoke the 4th Amendment and not allow a search of property or an inspection of identification or immigration documents.
Fifth Amendment
The 5th Amendment protects all people against self-incrimination. If law enforcement does not physically observe a person who is not a non-citizen enter Texas from a foreign country at a place other than a port of entry, the only other way to establish probable cause is to obtain that information from the person being investigated (either by questioning or providing documentation). For that reason, it is important that people are aware of their rights and not provide state law enforcement with any information that could lead to their arrest. No one must answer any questions about their citizenship or immigration status to state law enforcement. Most importantly, any person who is a non-citizen that entered Texas from a foreign nation at a place other than a port of entry should invoke their 5th Amendment right to remain silent, especially as it relates to how they entered Texas. Invoking the 5th Amendment requires a person to verbally invoke it by saying “I am invoking my 5th Amendment right to remain silent and want to speak with a lawyer.”
Sixth Amendment
The 6th Amendment guarantees that any person arrested for an offense under SB4 has the right to an attorney and the right to request appointment of counsel if the person cannot afford counsel. However, even though a person is guaranteed an attorney, a person is not entitled to be represented by counsel during magistration which is the crucial time under SB4 where the person must decide whether they agree to be removed to the foreign nation they are alleged to have entered in lieu of further prosecution and incarceration. For that reason, it is crucial that anyone arrested under SB4 request their 6th Amendment right to counsel even if that means it will delay their release from custody.
What documents should someone show to state law enforcement during a police encounter? Any person who does not have a US passport, a Texas ID or Driver’s License, or a document that proves they entered Texas from a port of entry should invoke their 4th and 5th Amendment rights and not allow law enforcement to search property and not provide other identification or immigration documents to law enforcement. Even a non-citizen who entered Texas from a foreign nation from a place other than a port of entry that has been processed by federal immigration officials will still be subject to arrest, prosecution and state removal for Illegal Entry. If a non-citizen has a prior removal order, it is likely that will be discovered by state law enforcement during any type of law enforcement database check once identification is provided and if that person is ever found in Texas at any time, they will be arrested for Illegal Reentry.
What should I do if I or someone I know is arrested for an SB4 offense?
Where will they be taken? If a person is arrested for Illegal Entry or Illegal Reentry, per Texas Code of Criminal Procedure Article 15.17, the person must be taken to a magistrate within 48 hours for the magistrate judge to determine probable cause, to advise the person of the charges and to set bond set. Texas Code of Criminal Procedure Article 17.033 requires that the person must be released on bond within 24 hours after arrest if a magistrate has not made a probable cause finding. It is possible the person will be taken in-person to the magistrate at the jail in the county where the arrest occurred. However, the law also allows the arrested person to be brought before a magistrate within this period via videoconference and this may be in a different county from the arrest. Based on current Operation Lone Star prosecutions, it is likely that if a person is arrested for an SB4 offense near the Texas-Mexico border, they will be taken to a temporary processing facility in a nearby county where they will be placed in front of a computer for magistration via videoconference.
What will happen during magistration? It is during this magistration proceeding that after a probable cause determination, the person will initially be given the choice of agreeing to an order to return to the foreign nation from which they entered instead of being taken to jail for further prosecution. If a person agrees to a state removal order, they will be transported to a port of entry and ordered to return to the foreign nation, although SB 4 does not supply a time frame for when this transportation must occur. Therefore, a person may have to wait days or weeks in custody to be transported to a port of entry. If the person does not agree to a state removal, there will be a criminal bond set and the person will be booked into custody for further prosecution.
Will the person be able to consult with a lawyer during magistration? Under current law, a lawyer is not required to be provided at the time of magistration. Furthermore, even if a person already has a lawyer, a person does not have a right to have a lawyer present during magistration, nor is there a right to contact a lawyer during magistration. Therefore, it is likely that the person arrested will have to make this decision about whether to accept a state removal order to a foreign nation without being able to consult with legal counsel or family members.
What are the consequences of agreeing to a state removal order in lieu of further prosecution? A departure from the country can lead to permanent and negative consequences in immigration law, including termination of pending applications and imposition of lengthy and permanent bans on returns. Agreeing to a state removal order will also subject the person to a subsequent Illegal Reentry charge if they return to the United States. This could potentially cause a never-ending revolving door of state prosecutions and removals and could prevent the person from ever being able to request asylum or other forms of immigration relief from federal immigration authorities. Furthermore, if a person agrees to an order of removal and then fails to comply with the order (or changes their mind after they agree to the order), under SB 4 the person will be prosecuted for a second-degree felony Failure to Comply with Order to Return, punishable by 2-20 years in prison.
What should I do if I or someone I know is arrested for an SB 4 offense? Given the serious and potentially devastating consequences of a state removal order, it is imperative that legal counsel be consulted before a person agrees to a state removal order, even though requesting legal counsel will result in the person being taken to jail for further prosecution. There are many legal challenges that can only be made after consultation with a lawyer.
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