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A BILL TO BE ENTITLED
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AN ACT
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relating to the creation of the criminal offense of improper entry |
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from a foreign nation and indemnification of certain claims |
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relating to the enforcement of that offense. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Chapter 38, Penal Code, is amended by adding |
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Section 38.20 to read as follows: |
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Sec. 38.20. IMPROPER ENTRY FROM FOREIGN NATION. (a) In |
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this section, "alien" has the meaning assigned by 8 U.S.C. Section |
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1101, as that provision existed on January 1, 2023. |
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(b) A person who is an alien commits an offense if the |
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person: |
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(1) enters or attempts to enter this state from a |
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foreign nation at any location other than a lawful point of entry; |
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(2) eludes examination or inspection by United States |
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immigration officers; or |
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(3) attempts to enter or obtains entry to this state |
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from a foreign nation by an intentionally false or misleading |
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representation or the intentional concealment of a material fact. |
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(c) An offense under this section is a Class B misdemeanor, |
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except that if it is shown on the trial of the offense that the |
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person has previously been finally convicted of: |
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(1) an offense under this section, the offense is a |
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state jail felony; |
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(2) a state jail felony described by Subdivision (1) |
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or any other felony not listed in Article 42A.054(a), Code of |
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Criminal Procedure, the offense is a felony of the second degree; or |
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(3) a felony listed in Article 42A.054(a), Code of |
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Criminal Procedure, the offense is a felony of the first degree. |
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(d) It is an affirmative defense to prosecution under this |
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section that: |
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(1) the actor has been granted a federal immigration |
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benefit entitling the actor to: |
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(A) lawful presence in the United States; or |
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(B) asylum under 8 U.S.C. Section 1158; |
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(2) the actor's conduct does not constitute a |
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violation of 8 U.S.C. Section 1325(a); or |
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(3) the actor was approved for benefits under the |
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federal Deferred Action for Childhood Arrivals program between June |
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15, 2012, and July 16, 2021. |
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(e) For purposes of Subsection (d)(1), the following |
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federal programs do not confer federal immigration benefits |
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entitling the actor to lawful presence in the United States: |
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(1) the Deferred Action for Parents of Americans and |
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Lawful Permanent Residents; and |
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(2) any program not enacted by the United States |
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Congress that is a successor to or materially similar to the program |
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described by Subdivision (1) or Subsection (d)(3). |
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(f) A court may not abate the prosecution of an offense |
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under this section on the basis that a federal determination |
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regarding the immigration status of the actor is pending. |
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(g) A law enforcement officer of the Department of Public |
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Safety who arrests a person for an offense under this section shall, |
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to the extent feasible, detain the person in a facility established |
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under Operation Lone Star or a similar border security operation of |
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this state. |
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(h) A peace officer may not arrest a person for an offense |
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under this section unless the officer has probable cause to believe |
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that the person engaged in the conduct constituting the offense. |
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(i) On conviction of an offense under this section, the |
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judge shall enter in the judgment in the case an order requiring |
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that the person be returned to federal authorities at the nearest |
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port of entry for return to the person's country of origin or the |
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foreign nation from which the person entered or attempted to enter. |
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An order issued under this subsection: |
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(1) takes effect on completion of a term of |
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confinement or imprisonment imposed by the judgment; and |
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(2) must include the manner of transportation of the |
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person to the port of entry and the state agency responsible for |
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transporting the person and monitoring compliance with the order. |
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SECTION 2. Title 5, Civil Practice and Remedies Code, is |
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amended by adding Chapter 117 to read as follows: |
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CHAPTER 117. INDEMNIFICATION OF CERTAIN CLAIMS RELATING TO |
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ENFORCEMENT OF OFFENSE OF IMPROPER ENTRY FROM FOREIGN NATION |
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Sec. 117.001. DEFINITION. In this chapter, "damages" |
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includes any and all damages, fines, fees, penalties, court costs, |
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attorney's fees, or other assessments. |
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Sec. 117.002. LOCAL GOVERNMENT INDEMNIFICATION OF LOCAL |
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GOVERNMENT OFFICIALS, EMPLOYEES, AND CONTRACTORS. (a) Unless the |
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court or jury determines that the official, employee, or contractor |
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acted in bad faith, with conscious indifference, or with |
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recklessness, a local government shall indemnify an official, |
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employee, or contractor of the local government for damages arising |
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from a cause of action resulting from an action taken by the |
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official, employee, or contractor to enforce Section 38.20, Penal |
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Code, during the course and scope of the official's, employee's, or |
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contractor's office, employment, or contractual performance for or |
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service on behalf of the local government. |
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(b) Indemnification payments made under Subsection (a) by a |
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local government may not exceed: |
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(1) $100,000 to any one person or $300,000 for any |
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single occurrence in the case of personal injury or death; or |
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(2) $10,000 for a single occurrence of property |
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damage. |
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(c) A local government shall indemnify an official, |
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employee, or contractor of the local government for reasonable |
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attorney's fees incurred in defense of a criminal prosecution |
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against the official, employee, or contractor for an action taken |
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by the official, employee, or contractor to enforce Section 38.20, |
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Penal Code, during the course and scope of the official's, |
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employee's, or contractor's office, employment, or contractual |
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performance for or service on behalf of the local government. |
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(d) This section may not be construed to waive any statutory |
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limits on damages under state law. |
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Sec. 117.003. STATE INDEMNIFICATION OF STATE OFFICIALS, |
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EMPLOYEES, AND CONTRACTORS; ATTORNEY GENERAL REPRESENTATION. (a) |
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Unless the court or jury determines that the state official, |
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employee, or contractor acted in bad faith, with conscious |
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indifference, or with recklessness, the state shall indemnify an |
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elected or appointed state official or a state employee or |
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contractor for damages arising from a cause of action resulting |
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from an action taken by the official, employee, or contractor to |
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enforce Section 38.20, Penal Code, during the course and scope of |
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the official's, employee's, or contractor's office, employment, or |
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contractual performance for or service on behalf of the state. |
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(b) Notwithstanding any other law, indemnification under |
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Subsection (a) is not subject to any indemnification limits under |
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state law. |
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(c) The state shall indemnify a state official, employee, or |
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contractor for reasonable attorney's fees incurred in defense of a |
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criminal prosecution against the official, employee, or contractor |
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for an action taken by the official, employee, or contractor to |
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enforce Section 38.20, Penal Code, during the course and scope of |
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the official's, employee's, or contractor's office, employment, or |
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contractual performance for or service on behalf of the state. |
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(d) A state official, employee, or contractor who may be |
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entitled to indemnification under Subsection (a) is entitled to |
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representation by the attorney general, subject to Chapter 104, in |
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an action in connection with which the official, employee, or |
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contractor may be entitled to that indemnification. |
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(e) This section may not be construed to waive any statutory |
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limits on damages under state law. |
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Sec. 117.004. APPEAL TO SUPREME COURT. For a civil action |
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brought against a person who may be entitled under Section 117.002 |
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or 117.003 to indemnification for damages awarded against the |
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person in the action, an appeal must be taken directly to the |
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supreme court. |
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Sec. 117.005. OTHER LAWS NOT AFFECTED. This chapter does |
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not affect a defense, immunity, or jurisdictional bar available to |
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the state or a local government or an official, employee, or |
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contractor of the state or a local government. |
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SECTION 3. Subchapter B, Chapter 42A, Code of Criminal |
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Procedure, is amended by adding Article 42A.059 to read as follows: |
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Art. 42A.059. PLACEMENT ON COMMUNITY SUPERVISION |
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PROHIBITED FOR IMPROPER ENTRY FROM FOREIGN NATION. Notwithstanding |
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any other provision of this chapter, a defendant is not eligible for |
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community supervision, including deferred adjudication community |
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supervision, under this chapter if the defendant is charged with or |
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convicted of an offense under Section 38.20, Penal Code. |
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SECTION 4. Section 508.145(a), Government Code, is amended |
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to read as follows: |
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(a) An inmate is not eligible for release on parole if the |
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inmate is under sentence of death, serving a sentence of life |
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imprisonment without parole, or serving a sentence for any of the |
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following offenses under the Penal Code: |
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(1) Section 20A.03, if the offense is based partly or |
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wholly on conduct constituting an offense under Section |
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20A.02(a)(5), (6), (7), or (8); |
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(2) Section 21.02; [or] |
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(3) Section 22.021, if the offense is punishable under |
|
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Subsection (f) of that section; or |
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(4) Section 38.20. |
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SECTION 5. Section 508.149, Government Code, is amended by |
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adding Subsection (a-1) to read as follows: |
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(a-1) An inmate serving a sentence for an offense under |
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Section 38.20, Penal Code, may not be released to mandatory |
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supervision. |
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SECTION 6. It is the intent of the legislature that every |
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provision, section, subsection, sentence, clause, phrase, or word |
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in this Act, and every application of the provisions in this Act to |
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every person, group of persons, or circumstances, is severable from |
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each other. If any application of any provision in this Act to any |
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person, group of persons, or circumstances is found by a court to be |
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invalid for any reason, the remaining applications of that |
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provision to all other persons and circumstances shall be severed |
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and may not be affected. |
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SECTION 7. This Act takes effect on the 91st day after the |
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last day of the legislative session. |
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* * * * * |