Illegal Reentry By Certain Aliens: Texas Penal Code §51.03

The Texas Illegal Reentry By Certain Aliens law gives police the right to arrest you if they believe you have been denied admission to, or excluded from, deported, or removed from the United States or left the US after such an order was in place.

The Texas legislature created this offense in 2023 through the passage of SB4 in a fourth a special session. The Texas legislature codified this criminal offense in Texas Penal Code Section 51.03. The special session saw the creation of three new Texas criminal offenses, each with little to no chance of being enforceable due to the fact that the federal government has long had exclusive power over enforcing immigration laws. The state of Texas and its magistrates and law enforcement officers do not even have jurisdiction, or the practical capability, of determining whether someone is an alien.

The new Illegal Reentry By Certain Aliens law allows peace officers and state law enforcement agents the power to indiscriminately arrest anyone at any time for no particular reason and without any evidence, so long as they can later manufacture a reason why it’s possible that they had been excluded from the United States at any point in the past.

The police do not have to be correct in their belief, and they do not have to justify the arrest to a judge. In fact, state level law enforcement agencies do not even have access to the information needed to accurately form the kind of basis for these arrests, so this is a basically a pass for law enforcement to indiscrimiantely make arrests. While citizens cannot prevent themselves from being arrested, they will have the ability to hire a lawyer and fight their case in court, and ultimately take the case to trial, to determine whether or not they are a citizen of the United States.

Interestingly, this all actually applies to even to citizens, if they have ever been removed or deported in the past.

The other Texas criminal offenses enacted as part of SB4 are Illegal Entry From Foreign Nation and Refusal To Comply With Order To Return To Foreign Nation.

The Texas legislature codified this criminal offense in Texas Penal Code Section 51.03, and it went into effect March 5, 2024.

The Penal Code classifies the Texas Illegal Reentry By Certain Aliens law under Title 10 “Offenses Against Public Health, Safety, And Morals,” Chapter 51 “Illegal Entry Into This State.” Learn more about the Texas offense of Illegal Reentry By Certain Aliens below.

What is the current Texas law about Illegal Reentry By Certain Aliens?

The current Texas law defines the offense of Illegal Reentry By Certain Aliens in Penal Code Section §51.03 as follows:^[1]

(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.

In its fourth special session, the 88th Texas Legislature created this offense in 2023 through the passage of SB4.^[2]. The law was set to take effect on the “91st day after the last day of the legislative session” – early March 2024.^[3] However, this law has little to no chance of being enforceable due to the fact that the federal government has long had exclusive power over enforcing immigration laws. Its enfoceability will ultimately be decided by the courts.

Problems with this law

The issues with this law begin with the first sentence: “A person who is an alien…” The problem here is that it is impossible to tell just by looking at someone whether they are an “alien,” and there is no actus reus, meaning criminal act, associated with the offense. In other words, the activity that’s criminalized here is just existing. In the words of the statute, “found in this state.” So police officers can arrest anyone “found in this state” who they believe is an “alien” when there is no way to know whether or not someone is actually an alien. This has the effect of creating the opportunity for arbitrary arrrests.

To be crystal clear, this law applies statewide – not just on the border. If you are in Texas, a police officer could arrest you for simply being in Texas, so long as they get the impression that you are an “alien.” And the only thing you can do about it is bond out of jail, hire a criminal defense attorney to defend you in court, and take the case to trial.

The law also requires the (a)(1) and (a)(2) conditions to be met, but the problem remains that you’re subject to arrest without doing anything other than being in the state, and there’s no way for a police officer to know whether you had been deported in the past. So they could make up any basis for their justification, arrest you, and leave you fighting in court. Regardless of whether you’re an alien or the governor.

How can I be charged with an Illegal Reentry By Certain Aliens offense in Texas?

The state can charge you with Illegal Reentry By Certain Aliens if the state’s attorneys believe that each of the elements of Penal Code §51.03 as described in the section above have been met.

Unfortunately, the elements of the law do not require an actus reus, and create the conditions for aribtrary arrests. There are significant and numerous issues with this law that will make likely make it unconstitutional and unenforceable.

What is the statute of limitation for Illegal Reentry By Certain Aliens in Texas?

The legislature did not pass any accompanying limitations period laws in the special session that created this law, so the limitations period will fall under the general misdemeanor and felony limitations period laws.

Misdemeanor level Intoxication Assault charges have a two-year limitations period.^[4] Felony-level offenses have a three-year limitations period.^[5]

What is the penalty for a Texas Illegal Reentry By Certain Aliens offense?

The statute classifies the Illegal Reentry By Certain Aliens offense as a Class A Misdemeanor, but it can be enhanced to a second degree or third degree felony under certain circumstances.^[6]

Can you get probation for Illegal Reentry By Certain Aliens in Texas?

No, you are not eligible for probation or community supervision if you are convicted of this offense because this offense, along with all other Chapter 51 offenses, is specifically excepted from eligibility for community supervision.^[7]

What level of crime is Illegal Reentry By Certain Aliens in Texas?

The Penal Code classifies Illegal Reentry By Certain Aliens as a Class A Misdemeanor, but it can be enhanced to a second degree or third degree felony under certain circumstances..

Learn more about the penalty range for this offense in the section above.

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Legal References:

^1. Texas Penal Code §51.03. This law is current as of the 88th Legislature Regular Session.^2. SB 4, 88th Texas Legislature (SS4), Section 2^3. SB 4, 88th Texas Legislature (SS4), Section 9^4. Code of Criminal Procedure 12.02(a)^5. See Code of Criminal Procedure 12.01(9)^6. Texas Penal Code §51.03(b)^7. Art. 42A.059, Texas Code of Criminal Procedure