The highly controversial new Texas law called Failure to Comply with Immigration Detainer Request is contained within the 2017 state legislature’s “Senate Bill 4.” Senate Bill 4 (abbreviated as S.B. 4) contains numerous provisions, but the new Penal Code offense created by the bill is called Failure to Comply with Immigration Detainer Request.
FAILURE TO COMPLY WITH IMMIGRATION DETAINER REQUEST ATTORNEY FAQs
The SB4 bill was signed into law on May 7, 2017, and will be effective on September 1, 2017. The new Failure to Comply with Immigration Detainer Request adds a Section 39.07 to Chapter 39 of the Texas Penal Code. Chapter 39 contains the “Abuse of Office” offenses like Misuse of Official Information.
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Senate Bill 4 has caused an immense controversy, with some cities in Texas planning on filing a lawsuit in Federal Court to halt the implementation of the law. The outrage has spilled onto the national stage, as this is one of the most dramatic reactions to the new “sanctuary city” crackdowns.
Senate Bill 4 adds a new offense to the Texas Penal Code. It will be codified in Chapter 39 of the Texas Penal Code as Section 39.07 as follows:
(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.
The law applies only to “sheriff, chief of police, or constable or a person who otherwise has primary authority for administering a jail.” Note, however, that SB4 contains numerous provisions that cover more than just the new penal code offense. There is also an exception to the application of the new law that 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.1 So a sheriff could escape prosecution if the person had provided some proof of citizenship.
If you are convicted of Failure to Comply with Immigration Detainer Request, the penalty is classified as a Class A misdemeanor,2 with jail time of up to onw year and a fine of up to $4,000.
Yes, this law is most likely unconstitutional. However, a court has not ruled on the issue yet. Several Texas cities have 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.
1Texas Penal Code Section 39.07(c), as created by Senate Bill 4, 85th Texas Legislature, Section 5.02, effective September 1, 2017
2Texas Penal Code Section 39.07(b), as created by Senate Bill 4, 85th Texas Legislature, Section 5.02, effective September 1, 2017