84R11851 MTB-D

By: Hall S.B. No. 1252

A BILL TO BE ENTITLED

AN ACT

relating to an interstate compact on border security and immigration enforcement; authorizing fines and fees.

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

SECTION 1. Title 7, Government Code, is amended by adding Chapter 793 to read as follows:

CHAPTER 793. INTERSTATE COMPACT FOR BORDER SECURITY

Sec. 793.001. DEFINITIONS. In this chapter:

(1) "Commission" means the Interstate Border Security Commission.

(2) "Commissioner" means the individual appointed under Section 793.004.

(3) "Compact" means the Interstate Compact for Border Security executed under Section 793.002.

Sec. 793.002. EXECUTION OF COMPACT. This state enacts the Interstate Compact for Border Security and enters into the compact with all other states legally joining in the compact in substantially the following form:

INTERSTATE COMPACT FOR BORDER SECURITY

ARTICLE I. PURPOSE

(a) The compacting member states recognize that each state is responsible for monitoring, detection, apprehension, and detainment of unauthorized border crossers to enforce existing federal immigration law.

(b) The compacting member states are authorized to form a dedicated border security force with each state having an appropriate command structure. Each compacting member state's border security force shall be administered by the state law enforcement functions.

(c) The compacting member states are authorized to prosecute illegal alien criminal activity through the state attorneys general of the compacting states and incarcerate those convicted in prisons operated by the compacting member states.

(d) The border security forces from any compacting member state may operate in any other compact state's territory when requested by that state. Interstate sharing of state resources extends to both personnel and equipment resources. Cross-state operations and support are authorized for state militias, organized and unorganized as defined by 10 U.S.C. Section 311, employed in a state border security role.

(e) The compacting member states will immediately invalidate any restrictions placed on border enforcement activities under federal regulations administered by the United States Environmental Protection Agency, the Bureau of Land Management, the United States Fish and Wildlife Service, and any other federal agencies with the purpose of restricting land and airspace access to compacting state officials and their law enforcement agencies.

(f) The border security forces of the compacting member states shall be vested with broad law enforcement powers necessary to track down illegal border crossers, criminals, and human smugglers and traffickers and to enforce existing federal immigration laws.

(g) The compacting member states' border security forces are granted the authority to open and operate as many checkpoints along identified choke-points with access to the interior of the United States as are needed to interdict human smugglers and traffickers, transnational gang members, and illegal drug shipments. These should be floating checkpoints based on specific intelligence in order to restrict cartel and transnational gang ability to adapt to permanent checkpoint locations.

(h) It is the purpose of this compact and the commission created under this compact, through means of joint and cooperative action among the compacting states, to provide operational control and border security of international United States borders and coastlines adjacent to compacting member state borders, to provide internal immigration enforcement within the compacting member states' territories, to provide support to other compacting member states should criminal and terrorist strategies and tactics evolve into a specific threat to one or more compacting member states, and to equitably distribute the costs, benefits, and obligations of the compact among the compacting member states.

(i) In addition, this compact is intended to create a commission that will establish uniform procedures to manage joint activities of the compacting states and the execution of support activities and resources between and among the compacting member states, to establish a system of uniform tracking and data collection, to provide intelligence to other compacting states regarding illegal immigration activity within each state, to access information on active cases by authorized criminal justice officials, and to provide regular reporting to governors of the compacting member states, state legislatures, and the Secretary of the United States Department of Homeland Security.

(j) It is the policy of the compacting member states that the activities of the commission are intended to foster public safety and formulate public policy. Therefore, the commission is subject to public sunshine laws in each compacting member state.

ARTICLE II. DEFINITIONS

As used in this compact, unless the context clearly requires a different construction:

(a) "A secure border" is defined as when only those authorized to cross the border can do so, and every smuggling event between the legal ports of entry is detected and stopped.

(b) "Alien" means an individual who is not a United States citizen or United States national.

(c) "Bylaws" means those bylaws established by the commission for its governance or those rules constructed for directing or controlling the commission's actions or conduct.

(d) "Compacting state" or "compacting member state" means any state that has enacted the enabling legislation for this interstate compact.

(e) "Commissioner" means the voting representative of each compacting state appointed under Article III of this compact.

(f) "Illegal alien" means an alien who has entered the United States illegally and is deportable if apprehended, or an alien who entered the United States legally, but who has fallen "out of status" and is deportable.

(g) "Member" means the commissioner of a compacting member state or the commissioner's designee.

(h) "Non-compacting states" means any state that has not enacted enabling legislation for this compact.

(i) "Rules" means acts of the commission adopted under Article VII of this compact and substantially affecting interested parties that have the force of law in the compacting member states.

ARTICLE III. INTERSTATE BORDER SECURITY COMMISSION

(a) The compacting states hereby create the Interstate Border Security Commission. The commission is a body corporate and joint agency of the compacting member states. The commission has all the responsibilities, powers, and duties set forth in this compact, including the power to sue and be sued and such additional powers as may be conferred on it by subsequent action of the respective legislatures of the compacting member states in accordance with the terms of this compact.

(b) The commission consists of commissioners selected and appointed by each state. The commission's bylaws may provide for additional nonvoting members as it considers necessary.

(c) Each compacting state represented at any meeting of the commission is entitled to one vote. A majority of the compacting states shall constitute a quorum for the transaction of business, unless a larger quorum is required by the bylaws of the commission.

(d) The commission shall meet at least once each calendar year. The chair may call additional meetings and, on the request of a majority of compacting states, shall call additional meetings. Public notice must be given of all meetings, and meetings are open to the public, except as provided in Article VII of this compact. Public notice of meetings must include posting of meeting details on the commission's website and the websites of compacting member states.

(e) The commission shall establish an executive committee that shall include commission officers, members, and others as determined by the bylaws. The executive committee shall have the power to act on behalf of the commission during periods when the commission is not in session, with the exception of rulemaking or amendment to the compact. The executive committee oversees the day-to-day activities managed by the executive director. Commission staff administers enforcement and compliance with the compact and its bylaws and rules and performs other duties, as directed by the commission or set forth in the bylaws and rules.

ARTICLE IV. POWERS AND DUTIES OF THE INTERSTATE BORDER SECURITY

COMMISSION

The commission shall have the following powers:

(a) To adopt a seal and suitable bylaws governing the management and operation of the commission.

(b) To adopt rules that have the force and effect of statutory law and are binding in the compacting states to the extent and in the manner provided in this compact.

(c) To enforce compliance with the compact and the rules and bylaws of the commission, using all necessary and proper means, including the use of judicial process.

(d) To establish and maintain offices.

(e) To purchase and maintain insurance and bonds.

(f) To borrow, accept, or contract for the services of personnel, including members and their staffs.

(g) To establish and appoint committees and hire staff that it considers necessary to carry out its functions, including an executive committee as required by Article III of this compact, that has the power to act on behalf of the commission in carrying out its powers and duties under this compact.

(h) To elect or appoint officers, attorneys, employees, agents, or consultants, and to fix their compensation, define their duties, and determine their qualifications, and to establish the commission's personnel policies and programs relating to, among other things, conflicts of interest, rates of compensation, and qualifications of personnel.

(i) To accept any and all donations and grants of money, equipment, supplies, materials, and services and to receive, use, and dispose of same.

(j) To lease, purchase, accept contributions or donations of any property, or otherwise own, hold, improve, or use any property, whether real, personal, or mixed.

(k) To sell, convey, mortgage, pledge, lease, exchange, abandon, or otherwise dispose of any property, whether real, personal, or mixed.

(l) To establish a budget and make expenditures and impose dues as provided in Article IX of this compact.

(m) To sue and be sued.

(n) To provide for dispute resolution among compacting member states.

(o) To perform such functions as may be necessary or appropriate to achieve the purposes of this compact.

(p) To report annually to the compacting member states' governors, legislatures, and the Secretary of the United States Department of Homeland Security concerning the activities of the commission during the preceding year. The reports shall also include any recommendations that may have been adopted by the commission.

(q) To coordinate education, training, and public awareness regarding border security and immigration enforcement for officials involved in such activity.

(r) To establish uniform standards for the reporting, collecting, and exchanging of data.

ARTICLE V. ORGANIZATION AND OPERATION OF THE INTERSTATE BORDER

SECURITY COMMISSION

(a) The commission shall, by a majority of its members, not later than a year after the first commission meeting, adopt bylaws to govern its conduct as may be necessary or appropriate to carry out the purposes of the compact, including:

(1) establishing the fiscal year of the commission;

(2) establishing an executive committee and other committees as may be necessary;

(3) providing reasonable standards and procedures:

(i) for the establishment of committees; and

(ii) governing any general or specific delegation of any authority or function of the commission;

(4) providing reasonable procedures for calling and conducting meetings of the commission and ensuring reasonable notice of each meeting;

(5) establishing the titles and responsibilities of the officers of the commission;

(6) providing reasonable standards and procedures for the establishment of the personnel policies and programs of the commission. Notwithstanding any civil service laws, or other similar laws of any compacting member state, the bylaws shall exclusively govern the personnel policies and programs of the commission;

(7) providing a mechanism for decommissioning the operations of the commission and the equitable return of any surplus funds that may exist on the termination of the compact, after the payment or reserve of funds needed to retire all of the commission's debts and obligations;

(8) providing transition rules for start-up administration of the compact; and

(9) establishing standards and procedures for compliance and technical assistance in carrying out the compact.

(b)(1) The commission shall, by a majority of the members, elect from among its members a chair and a vice-chair, each of whom shall have the authorities and duties as may be specified in the bylaws. The chair, or in the chair's absence or disability, the vice-chair, shall preside at all meetings of the commission. The officers so elected shall serve without compensation or remuneration from the commission, provided that, subject to the availability of budgeted funds, the officers shall be reimbursed for any actual and necessary costs and expenses incurred by them in the performance of their duties and responsibilities as officers of the commission.

(2) The commission shall, through its executive committee, appoint or retain an executive director for the period, on terms and conditions, and for the compensation as the commission considers appropriate. The executive director shall serve as secretary to the commission and shall hire and supervise other staff as may be authorized by the commission, but may not be a member of the commission.

(c) The commission shall maintain its corporate books and records in accordance with the bylaws.

(d)(1) The commission shall defend the commissioner of a compacting member state, the commissioner's representatives or employees, or the commission's representatives or employees in any civil action seeking to impose liability arising out of any actual or alleged act, error, or omission that occurred within the scope of commission employment, duties, or responsibilities, or that the defendant had a reasonable basis for believing occurred within the scope of commission employment, duties, or responsibilities, provided that the actual or alleged act, error, or omission did not result from intentional wrongdoing on the part of such person.

(2) The commission shall indemnify and hold the commissioner of a compacting member state, the appointed representatives or employees, or the commission's representatives or employees, harmless in the amount of any settlement or judgment obtained against those persons arising out of any actual or alleged act, error, or omission that occurred within the scope of commission employment, duties, or responsibilities, or that those persons had a reasonable basis for believing occurred within the scope of commission employment, duties, or responsibilities, provided that the actual or alleged act, error, or omission did not result from intentional wrongdoing on the part of those persons.

ARTICLE VI. ACTIVITIES OF THE INTERSTATE BORDER SECURITY

COMMISSION

(a) The commission shall meet and take actions as are consistent with the provisions of this compact.

(b) Except as otherwise provided in this compact and unless a greater percentage is required under the bylaws, in order to constitute an act of the commission, the act must have been taken at a meeting of the commission and must have received an affirmative vote of a majority of the members present.

(c) Each member of the commission shall have the right and power to cast a vote to which that compacting state is entitled and to participate in the business and affairs of the commission. A member shall vote in person on behalf of the compacting state and may not delegate a vote to another compacting state. However, a member may designate another individual, in the absence of the member, to cast a vote on behalf of the member at a specified meeting. The bylaws may provide for members' participation in meetings by telephone or other means of telecommunication or electronic communication. Any voting conducted by telephone or other means of telecommunication or electronic communication shall be subject to the same quorum requirements of meetings where members are present in person and to the same requirements of open meetings as determined by Subsection (e) of this article.

(d) The commission's bylaws shall establish conditions and procedures under which the commission shall make its information and official records available to the public for inspection or copying. The commission may exempt from disclosure any information or official records to the extent the information or records would adversely affect personal privacy rights or proprietary interests. In adopting those rules, the commission may make available to law enforcement agencies records and information otherwise exempt from disclosure, and may enter into agreements with law enforcement agencies to receive or exchange information or records subject to nondisclosure and confidentiality provisions.

(e) The commission shall adopt rules consistent with the principles contained in the Government in the Sunshine Act, 5 U.S.C. Section 552b. The commission and any of its committees may close a meeting to the public when the commission determines by two-thirds vote that an open meeting would be likely to:

(1) relate solely to the commission's internal personnel practices and procedures;

(2) disclose matters specifically exempted from disclosure by statute;

(3) disclose trade secrets or commercial or financial information that is privileged or confidential;

(4) involve accusing any person of a crime or formally censuring any person;

(5) disclose information of a personal nature when the disclosure would constitute a clearly unwarranted invasion of personal privacy;

(6) disclose investigatory records compiled for law enforcement purposes;

(7) disclose information contained in or related to examination, operating, or condition reports prepared by, or on behalf of or for the use of, the commission with respect to a regulated entity for the purpose of regulation or supervision of such entity;

(8) disclose information when the premature disclosure would significantly endanger the life of a person or the stability of a regulated entity; or

(9) specifically relate to the commission's issuance of a subpoena or its participation in a civil action or proceeding.

(f) For every meeting closed under Subsection (e) of this article, the commission's chief legal officer shall publicly certify that, in the officer's opinion, the meeting may be closed to the public and shall make reference to each relevant provision authorizing closure of the meeting. The commission shall keep minutes that fully and clearly describe all matters discussed in any meeting and shall provide a full and accurate summary of any action taken, and the reasons for the action, including a description of each of the views expressed on any item and the record of any roll call vote. All documents considered in connection with any action shall be identified in such minutes.

(g) The commission shall collect standardized data concerning the interstate movement and activity of illegal aliens within the compacting member states as directed through its bylaws and rules, which specify the data to be collected, the means of collection, data exchange, and reporting requirements.

ARTICLE VII. RULEMAKING FUNCTIONS OF THE INTERSTATE BORDER

SECURITY COMMISSION

(a) The commission shall adopt rules in order to effectively and efficiently achieve the purposes of the compact, including transition rules governing administration of the compact during the period in which it is being considered and enacted by the states.

(b) Rulemaking shall occur under criteria set forth in this article and the bylaws and rules adopted under this article. Rulemaking shall substantially conform to the principles of the federal Administrative Procedure Act, 5 U.S.C. Section 551 et seq., and the federal Advisory Committee Act, 5 U.S.C. Appendix 2, Section 1 et seq. All rules and amendments shall become binding as of the date specified in each rule or amendment.

(c) If a majority of the legislatures of the compacting member states rejects a rule, by enactment of a statute or resolution in the same manner used to adopt the compact, then such rule shall have no further force and effect in any compacting state.

(d) When adopting a rule, the commission shall:

(1) publish the proposed rule, stating with particularity the text of the rule that is proposed and the reason for the proposed rule;

(2) allow persons to submit written data, facts, opinions, and arguments that will be publicly available;

(3) provide an opportunity for an informal hearing; and

(4) adopt a final rule and its effective date, if appropriate, based on the rulemaking record. Not later than 60 days after a rule is adopted, any interested person may file a petition in the United States District Court of the District of Columbia or in the federal district court where the commission's principal office is located for judicial review of the rule. If the court finds that the commission's action is not supported by substantial evidence in the rulemaking record, the court shall hold the rule unlawful and set it aside. For purposes of this subsection, evidence is substantial if it would be considered substantial evidence under the federal Administrative Procedure Act, 5 U.S.C. Section 551 et seq., and the federal Advisory Committee Act, 5 U.S.C. Appendix 2, Section 1 et seq.

(e) On determination by the commission that an emergency exists, the commission may adopt an emergency rule that is effective immediately on adoption, provided that the usual rulemaking procedures provided in this article shall be retroactively applied to said rule as soon as reasonably possible, but not later than the 90th day after the effective date of the rule.

ARTICLE VIII. OVERSIGHT, ENFORCEMENT, AND DISPUTE RESOLUTION BY

THE INTERSTATE BORDER SECURITY COMMISSION

(a)(1) The commission shall oversee the interstate movement of illegal aliens in the compacting states and shall monitor those activities being administered in non-compacting states that may significantly affect compacting member states.

(2) The courts and executive agencies in each compacting state shall enforce this compact and shall take all actions necessary and appropriate to effectuate the compact's purposes and intent. In any judicial or administrative proceeding in a compacting state pertaining to the subject matter of this compact that may affect the powers, responsibilities, or actions of the commission, the commission is entitled to receive all service of process in any of those proceedings and has standing to intervene in those proceedings for all purposes.

(b)(1) The compacting states shall report to the commission on issues or activities of concern to them and cooperate with and support the commission in the discharge of its duties and responsibilities.

(2) The commission shall attempt to resolve any disputes or other issues that are subject to the compact and that may arise among compacting states and non-compacting states. The commission shall enact a bylaw or adopt a rule providing for both mediation and binding dispute resolution for disputes among the compacting states.

(c) The commission, in the reasonable exercise of its discretion, shall enforce the provisions of this compact using any or all means set forth in Subsection (b) of Article XI of this compact.

ARTICLE IX. FINANCE

(a) The commission shall pay or provide for the payment of the reasonable expenses of its establishment, organization, and ongoing activities.

(b) The commission shall impose and collect an annual assessment from each compacting state to cover the cost of the internal operations and activities of the commission and its staff, in a total amount sufficient to cover the commission's annual budget as approved each year. The aggregate annual assessment amount shall be allocated based on a formula to be determined by the commission, taking into consideration the population of illegal aliens in the state, the magnitude of illegal alien smuggling and criminal activity, and the miles of international border in each compacting state. The commission shall adopt a rule that governs the assessment and is binding on all compacting member states.

(c) The commission may not incur any obligations of any kind before securing the funds adequate to meet the same, and the commission may not pledge the credit of any of the compacting states, except by and with the authority of the compacting state.

(d) The commission shall keep accurate accounts of all receipts and disbursements. The receipts and disbursements of the commission are subject to the audit and accounting procedures established under its bylaws. However, all receipts and disbursements of funds handled by the commission shall be audited yearly by a certified or licensed public accountant, and the report of the audit shall be included in and become part of the annual report of the commission.

ARTICLE X. COMPACTING STATES, EFFECTIVE DATE, AND AMENDMENT

(a) Any state is eligible to become a compacting member state.

(b) The compact is effective and binding on legislative enactment of the compact into law by not fewer than two of the 50 states. After enactment by two states, the compact is effective and binding as to any other compacting state on enactment of the compact into law by that state. The governors of non-compacting states or their designees may be invited to participate in commission activities on a nonvoting basis before adoption of the compact by other states.

(c) Amendments to the compact may be proposed by the commission for enactment by the compacting states. An amendment is not effective and binding on the commission and the compacting member states until it is enacted into law by unanimous consent of the compacting states.

ARTICLE XI. WITHDRAWAL, DEFAULT, TERMINATION, AND JUDICIAL

ENFORCEMENT

(a)(1) Once effective, the compact shall continue in force and remain binding on each and every compacting member state, provided that a compacting state may withdraw from the compact by specifically repealing the statute that enacted the compact into law.

(2) The effective date of withdrawal is the effective date of the repeal of the statute that enacted the compact into law.

(3) The withdrawing state shall immediately notify in writing the chair of the commission of the introduction of legislation repealing this compact in the legislature of the withdrawing state. The commission shall notify the other compacting states of the withdrawing state's intent to withdraw within 60 days of its receipt of the written notice.

(4) The withdrawing state is responsible for all assessments, obligations, and liabilities incurred through the effective date of withdrawal, including any obligations, the performance of which extend beyond the effective date of withdrawal.

(5) Reinstatement of a previously withdrawn compacting state occurs on the withdrawing state reenacting the compact or on a later date as determined by the commission.

(b)(1) If the commission determines that any compacting state has at any time defaulted in the performance of any of its obligations or responsibilities under this compact, or the bylaws or rules of the commission, the commission may impose any or all of the following penalties:

(i) fines, fees, and costs in amounts as are considered reasonable as fixed by the commission;

(ii) remedial training and technical assistance as directed by the commission; or

(iii) suspension and termination of membership in the compact. Suspension shall be imposed only after all other reasonable means of securing compliance under the bylaws and rules have been exhausted. Immediate notice of suspension shall be given by the commission to the governor, the chief justice or chief judicial officer of the defaulting state, the presiding officers of the defaulting state's legislature, and the defaulting state's attorney general.

(2) The grounds for default include failure of a compacting state to perform obligations or responsibilities imposed on it by this compact or the commission's bylaws or rules. Pending a cure of the default, the commission shall immediately notify in writing the defaulting member state of the penalty imposed by the commission. The commission shall stipulate the conditions and the time within which the defaulting state must cure its default. If the defaulting state fails to cure the default within the time specified by the commission, in addition to any other penalties imposed, the defaulting state may be terminated from the compact on an affirmative vote of a majority of the compacting states, and all rights, privileges, and benefits conferred by this compact shall be terminated from the effective date of suspension. Within 60 days of the effective date of termination of a defaulting state, the commission shall notify the governor, the chief justice or chief judicial officer of the defaulting state, and the presiding officers of the defaulting state's legislature, and the defaulting state's attorney general.

(3) The defaulting state is responsible for all assessments, obligations, and liabilities incurred through the effective date of termination, including any obligations the performance of which extend beyond the effective date of termination.

(4) The commission shall not bear any costs relating to the defaulting state unless otherwise mutually agreed on between the commission and the defaulting state. Reinstatement following termination of any compacting state requires both a reenactment of the compact by the defaulting state and the approval of the commission under the rules.

(c) The commission may, by majority vote of the members, initiate legal action in the United States District Court of the District of Columbia or, at the discretion of the commission, in the federal district court where the commission has its principal office, to enforce compliance with the provisions of the compact or its rules or bylaws against any compacting state in default. In the event judicial enforcement is necessary, the prevailing party shall be awarded all costs of litigation, including reasonable attorney's fees.

(d)(1) The compact dissolves effective on the date of the withdrawal or default of the compacting state that reduces membership in the compact to one compacting state.

(2) On the dissolution of this compact, the compact becomes void and is of no further force or effect, the business and affairs of the commission are concluded, and any surplus funds shall be distributed in accordance with the bylaws.

ARTICLE XII. SEVERABILITY AND CONSTRUCTION

(a) The provisions of this compact shall be severable, and if any phrase, clause, sentence, or provision is considered unenforceable, the remaining provisions of the compact shall be enforceable.

(b) The provisions of this compact shall be liberally construed to effectuate its purposes.

ARTICLE XIII. BINDING EFFECT OF COMPACT AND OTHER LAWS

(a)(1) This compact does not prevent the enforcement of any other law of a compacting state that is not inconsistent with this compact.

(2) All agreements between the commission and the compacting states are binding in accordance with their terms.

(3) On the request of a party to a conflict over the meaning or interpretation of commission actions, and on a majority vote of the compacting member states, the commission may issue advisory opinions regarding the meaning or interpretation.

(4) In the event any provision of this compact exceeds the constitutional limits imposed on the legislature of any compacting state, the obligations, duties, powers, or jurisdiction sought to be conferred by the provision on the commission is ineffective and the obligations, duties, powers, or jurisdiction remains in the compacting state and is exercised by the agency of the compacting state to which the obligations, duties, powers, or jurisdiction is delegated by law in effect at the time this compact becomes effective.

Sec. 793.003. EFFECT ON TEXAS LAWS. If the laws of this state conflict with the compact or a rule adopted under that compact, the compact or rule controls, except that if a conflict exists between the compact or rule and the Texas Constitution, as determined by the courts of this state, the Texas Constitution controls.

Sec. 793.004. COMMISSIONER. (a) The governor shall appoint a commissioner to be responsible for administration and management of this state's participation in the compact.

(b) If the commissioner is unable to attend a specific meeting of the commission created under the compact, the governor shall delegate voting authority for that meeting to another individual from this state.

(c) The commissioner serves at the will of the governor.

SECTION 2. This Act takes effect immediately if it receives a vote of two-thirds of all the members elected to each house, as provided by Section 39, Article III, Texas Constitution. If this Act does not receive the vote necessary for immediate effect, this Act takes effect September 1, 2015.