Refusal To Comply With Order To Return To Foreign Nation: Texas Penal Code §51.04

Under the new Texas Refusal To Comply With Order To Return To Foreign Nation law, enacted by the legislature in a fourth special session in 2023 through the passage of SB 4, anyone, including potentially United States citizens, commits a felony by refusing to deport themselves to any nation that a Texas judge chooses if the judge, who does not have direct access to federal immigration data, finds “probable cause” that the person has ever been in the United States illegally or entered from any place other than a “lawful port of entry.”

This law enables Texas law enforcement agents the power to arrest anyone for not complying with a Texas magistrate judge’s order to deport themselves from the United States.

The Texas legislature created this offense in 2023 through the passage of SB4 in a fourth a special session. The special session saw the passage 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 other Texas crimes enacted as part of SB4 are Illegal Entry From Foreign Nation and Illegal Reentry By Certain Aliens.

The Texas legislature codified this criminal offense in Texas Penal Code Section 51.04, and it went into effect March 5, 2024.

The Penal Code classifies the Texas Refusal To Comply With Order To Return To 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 Refusal To Comply With Order To Return To Foreign Nation below.

What is the current Texas law about Refusal To Comply With Order To Return To Foreign Nation?

The current Texas law defines the offense of Refusal To Comply With Order To Return To Foreign Nation in Penal Code Section §51.04 as follows:^[1]

(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.

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.

The “chapter” referenced by this law is Chapter 51 “Illegal Entry Into This State,” which comprises the three new criminal offenses under SB 4 that were passsed by the legislature in 2023, including this law and Illegal Entry From Foreign Nation or Illegal Reentry By Certain Aliens.

Problems with this law

The law references Article 5B.002, Code of Criminal Procedure, which was an additional law passed as part of SB 4 during the special session that allows Texas magistrate and district judges to make a “determination” that “probable cause exists” for an arrest under the new Illegal Entry From Foreign Nation or Illegal Reentry By Certain Aliens laws and order the person released from custody and issue a written order to derport themselves.^[4] Among other requirements, the accused person must “agree” to the order, although there is no mechanism in place to determine whether someone is actually agreeing to the order, or simply being determined to have agreed to it.^[5] More than likely, people will act as their attorneys tell them to act. And when facing up to twenty years in prison by not agreeing, it is likely that most attorneys will advise people to just agree to leave the country instead of fighting with Texas government since, under this law, the judge is required to dismiss the case if the person agrees to leave.

However, Texas judges do not have direct access to the data that would be required to make this kind of probable cause determination. And it’s likely that many determinations will not be made properly. For instance, under the Illegal Entry From Foreign Nation law, the magistrate would have to know exactly which Presidential executive orders were in place at the time and which areas those orders covered. This is not something that state magistrate judges typically do. Furthermore, there is no right to appeal built into the new statute.

How can I be charged with a Refusal To Comply With Order To Return To Foreign Nation offense in Texas?

The state can charge you with Refusal To Comply With Order To Return To Foreign Nation if the state’s attorneys believe that a Texas magistrate or judge has ordered you to deport yourself to another country and you “refused.”

What it means to “refuse” is not defined in the law, so that element of the offense would ultimately be decided by a jury. The state could conceivably argue that taking 24 hours to leave or call your attorney or call your children or to find your US passport considered “refusal.” Of course, you could argue otherwise to a jury if you want to wait in jail for the months or years it takes (or bond if you are granted bond) for the opportunity to take your case to trial. There are also other issues with this law.

What is the statute of limitation for Refusal To Comply With Order To Return To 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 felony limitations period laws.

As a felony, Intoxication Manslaughter charges have a three-year limitations period.^[6]

What is the penalty for a Texas Refusal To Comply With Order To Return To Foreign Nation offense?

The statute classifies the Refusal To Comply With Order To Return To Foreign Nation offense as a second degree felony.^[7]

Can you get probation for Refusal To Comply With Order To Return To 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.^[8]

What level of crime is Refusal To Comply With Order To Return To Foreign Nation in Texas?

The Penal Code classifies Refusal To Comply With Order To Return To Foreign Nation as a second degree felony.

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

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Legal References:

^1. Texas Penal Code §51.04. 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. Art. 5B, Texas Code of Criminal Procedure, as enacted by SB 4, 88th Texas Legislature (SS4),^5. Art. 5B.002(c)(1), Texas Code of Criminal Procedure, as enacted by SB 4, 88th Texas Legislature (SS4)^6. See Code of Criminal Procedure 12.01(9)^7. Texas Penal Code §51.04(b)^8. Art. 42A.059, Texas Code of Criminal Procedure