S.B. No. 4

AN ACT

relating to prohibitions on the illegal entry into or illegal presence in this state by a person who is an alien, the enforcement of those prohibitions and certain related orders, including immunity from liability and indemnification for enforcement actions, and authorizing or requiring under certain circumstances the removal of persons who violate those prohibitions; creating criminal offenses.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Title 1, Code of Criminal Procedure, is amended by adding Chapter 5B to read as follows:

CHAPTER 5B. PROCEDURES FOR CERTAIN OFFENSES INVOLVING ILLEGAL

ENTRY INTO THIS STATE

Art. 5B.001. ENFORCEMENT PROHIBITED IN CERTAIN LOCATIONS. Notwithstanding any other law, a peace officer may not arrest or detain a person for purposes of enforcing a provision of Chapter 51, Penal Code, if the person is on the premises or grounds of:

(1) a public or private primary or secondary school for educational purposes;

(2) a church, synagogue, or other established place of religious worship;

(3) a health care facility, as defined by Section 161.471, Health and Safety Code, including a facility a state agency maintains or operates to provide health care, or the office of a health care provider, as defined by Section 161.471, Health and Safety Code, provided that the person is on the premises or grounds of the facility or office for the purpose of receiving medical treatment; or

(4) a SAFE-ready facility, as defined by Section 323.001, Health and Safety Code, or another facility that provides forensic medical examinations to sexual assault survivors in accordance with Chapter 323, Health and Safety Code, provided that the person is on the premises or grounds of the facility for purposes of obtaining a forensic medical examination and treatment.

Art. 5B.002. ORDER TO RETURN TO FOREIGN NATION. (a) A magistrate during a person's appearance under Article 14.06 or 15.17 may, after making a determination that probable cause exists for arrest for an offense under Section 51.02 or 51.03, Penal Code, order the person released from custody and issue a written order in accordance with Subsection (c).

(b) The judge in a person's case at any time after the person's appearance before a magistrate under Article 14.06 or 15.17 may, in lieu of continuing the prosecution of or entering an adjudication regarding an offense under Section 51.02 or 51.03, Penal Code, dismiss the charge pending against the person and issue a written order in accordance with Subsection (c).

(c) A written order authorized by Subsection (a) or (b) must discharge the person and require the person to return to the foreign nation from which the person entered or attempted to enter, and may be issued only if:

(1) the person agrees to the order;

(2) the person has not previously been convicted of an offense under Chapter 51, Penal Code, or previously obtained a discharge under an order described by Subsection (a) or (b);

(3) the person is not charged with another offense that is punishable as a Class A misdemeanor or any higher category of offense; and

(4) before the issuance of the order, the arresting law enforcement agency:

(A) collects all available identifying information of the person, which must include taking fingerprints from the person and using other applicable photographic and biometric measures to identify the person; and

(B) cross-references the collected information with:

(i) all relevant local, state, and federal criminal databases; and

(ii) federal lists or classifications used to identify a person as a threat or potential threat to national security.

(d) On a person's conviction of an offense under Chapter 51, Penal Code, the judge shall enter in the judgment in the case an order requiring the person to return to the foreign nation from which the person entered or attempted to enter. An order issued under this subsection takes effect on completion of the term of confinement or imprisonment imposed by the judgment.

(e) An order issued under this article must include:

(1) the manner of transportation of the person to a port of entry, as defined by Section 51.01, Penal Code; and

(2) the law enforcement officer or state agency responsible for monitoring compliance with the order.

(f) An order issued under this article must be filed:

(1) with the county clerk of the county in which the person was arrested, for an order described by Subsection (a); or

(2) with the clerk of the court exercising jurisdiction in the case, for an order described by Subsection (b) or (d).

(g) Not later than the seventh day after the date an order is issued under this article, the law enforcement officer or state agency required to monitor compliance with the order shall report the issuance of the order to the Department of Public Safety for inclusion in the computerized criminal history system under Chapter 66.

Art. 5B.003. ABATEMENT OF PROSECUTION ON BASIS OF IMMIGRATION STATUS DETERMINATION PROHIBITED. A court may not abate the prosecution of an offense under Chapter 51, Penal Code, on the basis that a federal determination regarding the immigration status of the defendant is pending or will be initiated.

SECTION 2. Title 10, Penal Code, is amended by adding Chapter 51 to read as follows:

CHAPTER 51. ILLEGAL ENTRY INTO THIS STATE

Sec. 51.01. DEFINITIONS. In this chapter:

(1) "Alien" has the meaning assigned by 8 U.S.C. Section 1101, as that provision existed on January 1, 2023.

(2) "Port of entry" means a port of entry in the United States as designated by 19 C.F.R. Part 101.

Sec. 51.02. ILLEGAL ENTRY FROM FOREIGN NATION. (a) A person who is an alien commits an offense if the person enters or attempts to enter this state directly from a foreign nation at any location other than a lawful port of entry.

(b) An offense under this section is a Class B misdemeanor, except that the offense is a state jail felony if it is shown on the trial of the offense that the defendant has been previously convicted of an offense under this section.

(c) It is an affirmative defense to prosecution under this section that:

(1) the federal government has granted the defendant:

(A) lawful presence in the United States; or

(B) asylum under 8 U.S.C. Section 1158;

(2) the defendant's conduct does not constitute a violation of 8 U.S.C. Section 1325(a); or

(3) the defendant was approved for benefits under the federal Deferred Action for Childhood Arrivals program between June 15, 2012, and July 16, 2021.

(d) The following federal programs do not provide an affirmative defense for purposes of Subsection (c)(1):

(1) the Deferred Action for Parents of Americans and Lawful Permanent Residents program; and

(2) any program not enacted by the United States Congress that is a successor to or materially similar to the program described by Subsection (c)(3) or Subdivision (1).

Sec. 51.03. ILLEGAL REENTRY BY CERTAIN ALIENS. (a) A person who is an alien commits an offense if the person enters, attempts to enter, or is at any time found in this state after the person:

(1) has been denied admission to or excluded, deported, or removed from the United States; or

(2) has departed from the United States while an order of exclusion, deportation, or removal is outstanding.

(b) An offense under this section is a Class A misdemeanor, except that the offense is:

(1) a felony of the third degree if:

(A) the defendant's removal was subsequent to a conviction for commission of two or more misdemeanors involving drugs, crimes against a person, or both;

(B) the defendant was excluded pursuant to 8 U.S.C. Section 1225(c) because the defendant was excludable under 8 U.S.C. Section 1182(a)(3)(B);

(C) the defendant was removed pursuant to the provisions of 8 U.S.C. Chapter 12, Subchapter V; or

(D) the defendant was removed pursuant to 8 U.S.C. Section 1231(a)(4)(B); or

(2) a felony of the second degree if the defendant was removed subsequent to a conviction for the commission of a felony.

(c) For purposes of this section, "removal" includes an order issued under Article 5B.002, Code of Criminal Procedure, or any other agreement in which an alien stipulates to removal pursuant to a criminal proceeding under either federal or state law.

Sec. 51.04. REFUSAL TO COMPLY WITH ORDER TO RETURN TO FOREIGN NATION. (a) A person who is an alien commits an offense if:

(1) the person has been charged with or convicted of an offense under this chapter;

(2) a magistrate or judge, as applicable, has issued an order under Article 5B.002, Code of Criminal Procedure, for the person to return to the foreign nation from which the person entered or attempted to enter; and

(3) the person refuses to comply with the order.

(b) An offense under this section is a felony of the second degree.

SECTION 3. Title 5, Civil Practice and Remedies Code, is amended by adding Chapter 117 to read as follows:

CHAPTER 117. LIABILITY FOR AND INDEMNIFICATION OF CERTAIN CLAIMS

RELATING TO ENFORCEMENT OF CERTAIN CRIMINAL OFFENSES INVOLVING

ILLEGAL ENTRY INTO THIS STATE

Sec. 117.001. DEFINITION. In this chapter, "damages" includes any and all damages, fines, fees, penalties, court costs, attorney's fees, or other assessments.

Sec. 117.002. CIVIL IMMUNITY FOR AND INDEMNIFICATION OF LOCAL GOVERNMENT OFFICIALS, EMPLOYEES, AND CONTRACTORS. (a) Except as provided by Subsection (d), a local government official, employee, or contractor is immune from liability for damages arising from a cause of action under state law resulting from an action taken by the official, employee, or contractor to enforce Chapter 51, Penal Code, or an order issued under Article 5B.002, Code of Criminal Procedure, during the course and scope of the official's, employee's, or contractor's office, employment, or contractual performance for or service on behalf of the local government.

(b) Subject to Subsection (c) and except as provided by Subsection (d), a local government shall indemnify an official, employee, or contractor of the local government for damages arising from a cause of action under federal law resulting from an action taken by the official, employee, or contractor to enforce Chapter 51, Penal Code, or an order issued under Article 5B.002, Code of Criminal Procedure, during the course and scope of the official's, employee's, or contractor's office, employment, or contractual performance for or service on behalf of the local government.

(c) Indemnification payments made under Subsection (b) by a local government may not exceed:

(1) $100,000 to any one person or $300,000 for any single occurrence in the case of personal injury or death; or

(2) $10,000 for a single occurrence of property damage.

(d) Subsections (a) and (b) do not apply if the court or jury determines that the local government official, employee, or contractor acted in bad faith, with conscious indifference, or with recklessness.

(e) A local government shall indemnify an official, employee, or contractor of the local government for reasonable attorney's fees incurred in defense of a criminal prosecution against the official, employee, or contractor for an action taken by the official, employee, or contractor to enforce Chapter 51, Penal Code, or an order issued under Article 5B.002, Code of Criminal Procedure, during the course and scope of the official's, employee's, or contractor's office, employment, or contractual performance for or service on behalf of the local government.

(f) This section may not be construed to waive any statutory limits on damages under state law.

Sec. 117.003. CIVIL IMMUNITY FOR AND INDEMNIFICATION OF STATE OFFICIALS, EMPLOYEES, AND CONTRACTORS. (a) Except as provided by Subsection (d), an elected or appointed state official or a state employee or contractor is immune from liability for damages arising from a cause of action under state law resulting from an action taken by the official, employee, or contractor to enforce Chapter 51, Penal Code, or an order issued under Article 5B.002, Code of Criminal Procedure, during the course and scope of the official's, employee's, or contractor's office, employment, or contractual performance for or service on behalf of the state.

(b) Except as provided by Subsection (d), the state shall indemnify an elected or appointed state official or a state employee or contractor for damages arising from a cause of action under federal law resulting from an action taken by the official, employee, or contractor to enforce Chapter 51, Penal Code, or an order issued under Article 5B.002, Code of Criminal Procedure, during the course and scope of the official's, employee's, or contractor's office, employment, or contractual performance for or service on behalf of the state.

(c) Notwithstanding any other law, an indemnification payment made under Subsection (b) is not subject to an indemnification limit under the laws of this state.

(d) Subsections (a) and (b) do not apply if the court or jury determines that the state official, employee, or contractor acted in bad faith, with conscious indifference, or with recklessness.

(e) The state shall indemnify a state official, employee, or contractor for reasonable attorney's fees incurred in defense of a criminal prosecution against the official, employee, or contractor for an action taken by the official, employee, or contractor to enforce Chapter 51, Penal Code, or an order issued under Article 5B.002, Code of Criminal Procedure, during the course and scope of the official's, employee's, or contractor's office, employment, or contractual performance for or service on behalf of the state.

(f) A state official, employee, or contractor who may be entitled to indemnification under Subsection (b) is entitled to representation by the attorney general, subject to Chapter 104, in an action in connection with which the official, employee, or contractor may be entitled to that indemnification.

(g) This section may not be construed to waive any statutory limits on damages under state law.

Sec. 117.004. APPEAL TO SUPREME COURT. For a civil action brought against a person who may be entitled to immunity or indemnification under Section 117.002 or 117.003, an appeal must be taken directly to the supreme court.

Sec. 117.005. OTHER LAWS NOT AFFECTED. This chapter does not affect a defense, immunity, or jurisdictional bar available to the state or a local government or an official, employee, or contractor of the state or a local government.

SECTION 4. Subchapter B, Chapter 42A, Code of Criminal Procedure, is amended by adding Article 42A.059 to read as follows:

Art. 42A.059. PLACEMENT ON COMMUNITY SUPERVISION PROHIBITED FOR CERTAIN OFFENSES INVOLVING ILLEGAL ENTRY INTO THIS STATE. Notwithstanding any other provision of this chapter, a defendant is not eligible for community supervision, including deferred adjudication community supervision, under this chapter if the defendant is charged with or convicted of an offense under Chapter 51, Penal Code.

SECTION 5. Article 66.102, Code of Criminal Procedure, is amended by adding Subsection (i) to read as follows:

(i) In addition to the information described by this article, information in the computerized criminal history system must include any order issued under Article 5B.002.

SECTION 6. Section 508.145(a), Government Code, is amended to read as follows:

(a) An inmate is not eligible for release on parole if the inmate is under sentence of death, serving a sentence of life imprisonment without parole, or serving a sentence for any of the following offenses under the Penal Code:

(1) Section 20A.03, if the offense is based partly or wholly on conduct constituting an offense under Section 20A.02(a)(5), (6), (7), or (8);

(2) Section 21.02; [or]

(3) Section 22.021, if the offense is punishable under Subsection (f) of that section; or

(4) Section 51.03 or 51.04.

SECTION 7. Section 508.149, Government Code, is amended by adding Subsection (a-1) to read as follows:

(a-1) An inmate serving a sentence for an offense under Section 51.03 or 51.04, Penal Code, may not be released to mandatory supervision.

SECTION 8. It is the intent of the legislature that every provision, section, subsection, sentence, clause, phrase, or word in this Act, and every application of the provisions in this Act to every person, group of persons, or circumstances, is severable from each other. If any application of any provision in this Act to any person, group of persons, or circumstances is found by a court to be invalid for any reason, the remaining applications of that provision to all other persons and circumstances shall be severed and may not be affected.

SECTION 9. This Act takes effect on the 91st day after the last day of the legislative session.

______________________________ ______________________________

President of the Senate Speaker of the House

I hereby certify that S.B. No. 4 passed the Senate on November 9, 2023, by the following vote: Yeas 17, Nays 11.

______________________________ Secretary of the Senate

I hereby certify that S.B. No. 4 passed the House on November 14, 2023, by the following vote: Yeas 83, Nays 61, one present not voting.

______________________________ Chief Clerk of the House

Approved:

______________________________

Date

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Governor