Failure to Comply with Immigration Detainer Request: Texas Penal Code §39.07

The highly controversial Texas Failure to Comply with Immigration Detainer Request law, passed in 2017, makes it illegal for anyone who administers a jail to knowingly fail to comply with an immigration detainer request from Immigrations and Customs Enforcement (“ICE”).

This new offense was enacted by the 2017 Texas legislature’s SB 4. SB 4 (short for Senate Bill 4) contains numerous provisions, among them creating and codifying this offense at Section 39.07 of the Texas Penal Code.

The governor signed SB4 on May 7, 2017, and this offense law went into effect September 1, 2017. Since its initial passage, the law has not been amended. The legislature continued to leave the law untouched in the 2023 legislative session. However, SB 4’s enforcement has run into significant issues due to constitutionality issues as we predicted right here on this page before the law was even passed.

Senate Bill 4 caused significant controversy, and the outrage spilled onto the national stage, as this was one of the most dramatic reactions to the new “sanctuary city” crackdowns. The legislature continued passing bills targeting immigrants in the following years, including in 2023, with the passage of another SB4 during the 88th Texas Legislature’s fourth special session.

The Penal Code classifies the Texas Failure to Comply with Immigration Detainer Request law under Title 8 “Offenses Against Public Administration,” Chapter 39 “Abuse Of Office.” Learn more about the Texas offense of Failure to Comply with Immigration Detainer Request below.

What is the current Texas law about Failure to Comply with Immigration Detainer Request?

Texas law currently defines the offense of Failure to Comply with Immigration Detainer Request in Penal Code Section §39.07 as follows:^[1]

(a) A person who is a sheriff, chief of police, or constable or a person who otherwise has primary authority for administering a jail commits an offense if the person:

(1) has custody of a person subject to an immigration detainer request issued by United States Immigration and Customs Enforcement; and

(2) knowingly fails to comply with the detainer request.

This offense was created by the 85th Texas Legislature in 2017,^[2] effective September 1, 2017.^[3]

Who does the new law cover?

The law applies only to a “sheriff, chief of police, or constable or a person who otherwise has primary authority for administering a jail.”

The law also provides an exception to the application of the offense if the person who was subject to an immigration detainer request described by subsection (a)(1) had provided proof that the person is a citizen of the United States or that the person has lawful immigration status in the United States, such as a Texas driver’s license or similar government-issued identification.^[4] So a sheriff could escape prosecution if the person had provided some proof of citizenship.

Note, however, that the SB4 bill contained numerous provisions that enacted and amended more than just this new offense.

Does SB4 contain constitutional violations?

The law created significant controversy immediately after it was passed, and the state legislature has continued to pass controversial and unconstitutional laws as a tool for political gain. Back in 2017, before the law took effect, we wrote the following: “Yes, this law is most likely unconstitutional.” Since then, Governor Paxton ran into significant headwinds in enforcing the law.^[5] However, parts of the law were allowed to stand.^[6]

Several Texas cities alleged the following grounds of unconstitutionality, and they are most likely correct:

SB 4 violates the Supremacy Clause by invading the federal government’s exclusive authority to regulate the ability of foreign nationals to work, travel, study, invest, trade, and safely reside within the United States. By authorizing local police to subject foreign nationals to status determinations, Texas threatens national economic and diplomatic interests. SB 4 conflicts with federal law by removing local discretion concerning immigration enforcement and by increasing sanctions imposed on immigrant communities beyond those authorized by Congress.

SB 4 violates Due Process by imposing a vague regulatory regime on local authorities while threatening draconian penalties for non-compliance. SB 4 violates the First Amendment by penalizing the conduct of local officials who “endorse” a policy that would contradict SB 4’s mandates. SB 4 violates Equal Protection by permitting local police to subject perceived undocumented immigrants to enhanced interrogation based upon protected traits including race, ethnicity, national origin, and immigration status.

SB 4 violates the Texas Constitution’s Due Course of Law provision by imposing unduly burdensome and oppressive harms on local communities while failing to further any legitimate state interest. Finally, SB 4 violates the Texas Constitution’s Home Rule guarantee by interfering with the ability of Austin residents to elect their local representatives and by withdrawing the City’s discretion to allocate scarce law enforcement resources and determine the most effective policies for public health and safety.

View Austin’s lawsuit alleging that the State of Texas is violating federal law through the creation of Senate Bill 4

What is the statute of limitation for Failure to Comply with Immigration Detainer Request in Texas?

As a misdemeanor, Failure to Comply with Immigration Detainer Request charges have a two-year limitations period.^[7]

What is the penalty for a Texas Failure to Comply with Immigration Detainer Request offense?

Failure to Comply with Immigration Detainer Request is classified as a Class A misdemeanor,^[8] with jail time of up to onw year and a fine of up to $4,000.

Can you get probation for Failure to Comply with Immigration Detainer Request in Texas?

The Texas Code of Criminal Procedure allows both judges and juries to grant probation for Failure to Comply with Immigration Detainer Request, and judges are also allowed to accept deferred adjudication plea deals.^[9]

Note, however, that judges may not grant community supervision after a conviction if (1) the defendant used or exhibited a deadly weapon during the commission of the felony or immediate flight thereafter and (2) the defendant used or exhibited the deadly weapon himself or was a party to the offense and knew that a deadly weapon would be used or exhibited.^[10]

What level of crime is Failure to Comply with Immigration Detainer Request in Texas?

The Penal Code classifies Failure to Comply with Immigration Detainer Request as a Class A misdemeanor.

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

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Legal References:

^1. Texas Penal Code §39.07. This law is current as of 2024.^2. SB 4, 85th Texas Legislature (RS), Section 5.02^3. SB 4, 85th Texas Legislature (RS), Section 7.01^4. Texas Penal Code §39.07(c), as created by SB 4, 85th Texas Legislature, Section 5.02, effective September 1, 2017^5. See Judge dismisses part of Texas’ “sanctuary city” lawsuit against San Antonio and Judge dismisses Paxton lawsuit over “sanctuary cities” law^6. Federal appeals court upholds Texas’ ‘sanctuary cities’ ban^7. See Code of Criminal Procedure 12.02(a)^8. Texas Penal Code Section 39.07(b), as enacted by SB 4, 85th Texas Legislature, Section 5.02, effective September 1, 2017^9. See Chapter 42, Texas Code of Criminal Procedure, Art. 42A.054, Art. 42A.056, Art. 42A.102 .^10. Art. 42A.054(b), Texas Code of Criminal Procedure