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  88S40058 JRR-D
 
  By: Spiller H.B. No. 4
 
 
 
A BILL TO BE ENTITLED
 
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 or the judge in the person's case at any time after that
  appearance 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 that discharges the person and requires
  the person to return to the foreign nation from which the person
  entered or attempted to enter, 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
  dismissal and discharge under this subsection;
               (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 dismissing the
  charge and discharging the person, 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.
         (b)  On 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.
         (c)  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.
         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.  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 6.  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 7.  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 8.  This Act takes effect on the 91st day after the
  last day of the legislative session.