Illegal Entry From Foreign Nation: Texas Penal Code §51.02

Texas Criminal Law

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Under the new Texas Illegal Entry From Foreign Nation law, passed by the legislature as part of SB 4, the state of Texas makes it a state-level crime for “aliens” to cross the United States border at any location other than a “lawful port of entry.”

However, the 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. This new 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 entered the United States illegally – which of course police officers could not possibly know in advance.

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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 51.02. The special session saw the passage of three new Texas criminal laws that have similar enforceability problems. 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 other Texas criminal offenses enacted as part of SB4 are Illegal Reentry By Certain Aliens and Refusal To Comply With Order To Return To Foreign Nation.

The Texas legislature codified this criminal offense in Texas Penal Code Section 51.02, and it went into effect March 5, 2024.

The Penal Code classifies the Texas Illegal Entry From Foreign Nation 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 Entry From Foreign Nation below.

What is the current Texas law about Illegal Entry From Foreign Nation?

The current Texas law defines the offense of Illegal Entry From Foreign Nation in Penal Code Section §51.02 as follows:[1]

(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.

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.” The only other element of this offense is simply that the person entered the United States from “any location other than a lawful port of entry.” The problems with this element are numerous.

First of all, it is incredibly overbraod. For instance, most people who entered the United States did not come from a lawful port of entry. They entered the United States through their mothers. And what is a lawful port of entry? The legislature defined it as “a port of entry in the United States as designated by 19 C.F.R. Part 101.”[4] And under that federal regulation, “ports of entry” are literally anywhere the President wants to designate as ports and can be changed at any time for any reason.[5]

Second, there is simply no way for a police officer to know whether or not someone entered from a lawful port of entry. Not only that, but also almost no one will know whether they entered from a lawful port of entry, given that not many people keep up with the latest Presidential executive orders. So essentially, what you have here, is an unlimited arbitrary ability to arrest anyone because no one will have any idea whether they entered the United States from a lawful port of entry.

How can I be charged with an Illegal Entry From Foreign Nation offense in Texas?

The state can charge you with Illegal Entry From Foreign Nation if the state’s attorneys believe that each of the elements of Penal Code §51.02 as described in the section above have been met.

Unfortunately, the elements of the law 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 Entry From Foreign Nation 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 Assembling or Operating a Ride While Intoxicated charges have a two-year limitations period.[6] Felony-level offenses have a three-year limitations period.[7]

What is the penalty for a Texas Illegal Entry From Foreign Nation offense?

The statute classifies the Illegal Entry From Foreign Nation offense as a Class B Misdemeanor, but it can be enhanced to a state jail felony if the state can prove a prior illegal entry.[8]

Can you get probation for Illegal Entry From Foreign Nation 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.[9]

What level of crime is Illegal Entry From Foreign Nation in Texas?

The Penal Code classifies Illegal Entry From Foreign Nation as a Class B Misdemeanor, but it can be enhanced to a state jail felony if the state can prove a prior illegal entry..

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


^1. Texas Penal Code §51.02. 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. Texas Penal Code §51.01 (2), as enacted by SB 4, 88th Texas Legislature (SS4), Section 2^5. 19 C.F.R. Part 101^6. Code of Criminal Procedure 12.02(a)^7. See Code of Criminal Procedure 12.01(9)^8. Texas Penal Code §51.02(b)^9. Art. 42A.059, Texas Code of Criminal Procedure

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