Texas Senate Bill 4: Analyzing SB4, Passed in 2023 & Taking Effect 2024

Texas Criminal Law

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In 2023, the 88th Texas legislature passed the now-infamous Texas SB4 – Senate Bill 4 – in its fourth special session. Texas SB 4 creates a vast regulatory and criminal scheme of laws that impart unprecedented power to various elements of Texas law enforcement and state courts.

For example, under SB 4, Texas police officers can now indiscriminately arrest anyone at all found in the state based on the appearance of being an illegal immigrant. Which, to be clear, is a problem because illegal immigrants look just like legal immigrants and families of immigrants that have been here for generations.

In another example, Texans, including US citizens, can commit a felony offense if they refuse to obey a Texas magistrate’s order to leave the United States. Even though Texas magistrate judges and district judges don’t have direct access to federal immigration data, they will be allowed to make determinations about whether people are United States citizens and whether people have violated federal immigration law. These are just two of the new laws. There’s more.

The whole law is clearly unconstitutional and unenforceable, but the Texas legislature had a strong political interest in playing politics in order to deflect blame from the “crisis” at the border. Remarkably, another Texas SB 4 targeting immigrants created controversy just a few short years ago in 2017.

What laws were created in Texas SB 4?

Texas SB4 created an entirely new chapter of the Penal Code: Chapter 51, entitled “Illegal Entry Into This State.”[1] The new Texas criminal offenses in this chapter are Illegal Entry From Foreign Nation, Illegal Reentry By Certain Aliens, and Refusal To Comply With Order To Return To Foreign Nation.

In addition to these new offenses, Texas SB 4 creates new procedures in the Code of Criminal Procedure, including a new Art. 5B.002 of the Code.[2] Under this new set of procedures, Texas magistrate judges may, after an initial appearance, order people to leave the United States. This order is a legally-binding order under state law, and if you violate the order, even if you’re actually a United States citizen, it’s punishable as a second degree felony. You have no right to appeal this determination. More details on this law below.

Because the legislature is scared of the consequences of enforcing such an extreme law that they’ve passed, SB4 includes provisions providing immunity for everyone involved in enforcing these new laws.[3]

In an attempt to save-face, the legislature also passed a statute that prohibits enforcement of the new criminal offenses in places like churches, schools, and health care facilities.[4]

SB 4 also eliminates the possibility of probation for these new offenses, explicitly barring judges from allowing community supervision sentences.[5] The bill also eliminates eligibility for parole[6] and mandatory supervision if you’re convicted of any of these offenses.[7]

The New “Order to Return to Foreign Nation” under Texas SB4

Under the new Texas SB4 laws, magistrate judges are now authorized (at least under state law) to order certain people to leave the United States. Whether such an order would violate state law, the Texas Constitution, or the United States Constitution, is unclear.

Under Art. 5B of the Texas Code of Criminal Procedure taking effect in March 2024, magistrate and district judges in Texas can make a “determination” that “probable cause exists” for an arrest under the new Illegal Entry From Foreign Nation and Illegal Reentry By Certain Aliens offenses and order them to leave the United States.[8]

There are no protections for United States citizens in the law, and accordingly, the law would ostensibly allow Texas judges to deport not just aliens, but also United States citizens, because of how broad the new Illegal Reentry By Certain Aliens offense is. Furthermore, the legislature did not create any right to appeal these orders and explicitly prohibits courts from abatement of enforcement on the basis of immigration status.[9]

As part of the order to leave the United States, the court (1) must order the person to be released from custody,[10] (2) may dismiss the underlying charges in lieu of further prosecution or adjudication, (3) require the person to “return to the foreign nation from which [the judge believes] the person entered or attempted to enter,”[11] (4) specify the manner of transportation to a port of entry,[12] and (5) specify the law enforcement officer or state agency responsible for monitoring compliance with the order.[13]

In order for the court to legally issue this order, SB4 requires that the accused person must “agree” to the order,[14] 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. 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.

Before issuing the order, law enforcement is required to collect and report certain data.[15] Courts are prohibited from issuing these orders only if (1) you have been convicted of one of these new state-level immigration offenses, (2) you previously obtained a discharge under an order under this new procedure or (3) you are not charged with another offense that is punishable as a Class A misdemeanor or higher category.[16]

Interestingly, Texas judges do not have direct access to the data that would be required to make this kind of probable cause determination. 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.

Is SB 4 constitutional? Will SB 4 be enforced?

The new Texas crimes passed through SB4 have little to no chance of being enforceable due to the fact that the federal government has long had exclusive power over enforcing immigration laws under federal law and the United States Constitution.[17] The justice department sued in early January 2024 to prevent the law from taking effect: “Under the Supremacy Clause of the Constitution and longstanding Supreme Court precedent, states cannot adopt immigration laws that interfere with the framework enacted by Congress.”

It might seem strange to waste so many taxpayer resources on bills that are obviously unconstitutional and unenforceable, but the state of Texas has many laws on the books that are unenforceable, including the criminal offense of Homosexuality, which, despite the fact that it’s clearly unconstitutional, Texas passed into law and continues to maintain on its books. These types of efforts, while cynical and wasteful of taxpayer resources, have nevertheless been supported by voters as they have not punished the lawmakers who do this. Acknowledging that the laws would be unenforceable under the law, Texas Republicans have said they want the U.S. Supreme Court to revisit the issue and change the longstanding legal interpretation.

Another issue with this law is that most of the counties that will be expected to prosecute this do not have anywhere near the level of resources needed to prosecute these offense. There is already a significant backlog of cases in these counties for offenses that don’t implicate thousands of women and children who are little threat to society. These border counties have their hands full trying to catch and prosecute actual drug traffickers and smugglers.

When was Texas SB4 passed? When will SB 4 take effect?

The SB 4 that this article examined, and the one that has received so much attention, passed in the fourth special legislative session of the Texas legislature in 2023.

A separate Senate Bill 4 passed in the third legislative session. The SB 4 from the third special session increased penalty levels for many different criminal offenses in situations where the state can prove that the offense involved conduct constituting a Smuggling of Persons offense.[18]

Why did the legislature pass SB 4?

The legislature passed this law in 2023 in response to the Republican conference’s effort to shape the rise of illegal immigration as a problem not of their doing – despite the fact that they controlled half of the U.S. Congress and had full control of all levers of government just a few short years before.

In 2023, and for years before, thousands of poor and unarmed women, children, and men have been crossing the border in search of better economic opportunities and seeking asylum. Despite the incredibly strong demand for laborers in the USA, Congress has been unable to pass any updates to federal immigration laws for decades.

Thousands of people have continued to stream across the Texas borders, and Texas politicians have successfully manipulated this extraordinary opportunity to increase the size of our desperately needed labor force into a political issue from which they can gin up votes with cynical scare tactics. Essentially, politicians extort power from unease of the public when there’s a group that can be blamed with little political consequence. Every politician is keenly aware of this ability to leverage fear into power, and they must manufacture fear in the absence of real threats if the career politicians are eager to cling to power.

^1. SB 4, 88th Texas Legislature (SS4), Section 2

^2. SB 4, 88th Texas Legislature (SS4), Section 1

^3. SB 4, 88th Texas Legislature (SS4), Section 3

^4. SB 4, 88th Texas Legislature (SS4), Section 1

^5. SB 4, 88th Texas Legislature (SS4), Section 4

^6. SB 4, 88th Texas Legislature (SS4), Section 6

^7. SB 4, 88th Texas Legislature (SS4), Section 7

^8. Art. 5B, Texas Code of Criminal Procedure, Art. 5B.002(a), as enacted by SB 4, 88th Texas Legislature (SS4), Section 1

^9. Art. 5B, Texas Code of Criminal Procedure, Art. 5B.003, as enacted by SB 4, 88th Texas Legislature (SS4), Section 1

^10. Art. 5B, Texas Code of Criminal Procedure Art. 5B.002(a), as enacted by SB 4, 88th Texas Legislature (SS4), Section 1

^11. Art. 5B, Texas Code of Criminal Procedure Art. 5B.002(c), as enacted by SB 4, 88th Texas Legislature (SS4), Section 1

^12 Art. 5B, Texas Code of Criminal Procedure Art. 5B.002(e)(1), as enacted by SB 4, 88th Texas Legislature (SS4), Section 1

^13. Art. 5B, Texas Code of Criminal Procedure Art. 5B.002(e)(2), as enacted by SB 4, 88th Texas Legislature (SS4), Section 1

^14. Texas Code of Criminal Procedure Art. 5B.002(c)(1), as enacted by SB 4, 88th Texas Legislature (SS4)

^15. Texas Code of Criminal Procedure Art. 5B.002(c)(4), as enacted by SB 4, 88th Texas Legislature (SS4): “the arresting law enforcement agency: (A) collects all available identifying information of the person, which must include taking fingerprints from the person and using other applicable photographic and biometric measures to identify the person; and (B) cross-references the collected information with: (i) all relevant local, state, and federal criminal databases; and (ii) federal lists or classifications used to identify a person as a threat or potential threat to national security.”

^16. Texas Code of Criminal Procedure Art. 5B.002(c)(2) & (3), as enacted by SB 4, 88th Texas Legislature (SS4)

^17. See this this Arizona Law Journal article for a short analysis.

^18. SB 4, 88th Texas Legislature (SS3)

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