AUSTIN, Texas — A bill that would create a Texas Border Protection Unit, allow the governor to declare a migrant “invasion” and let the new border unit enlist the help of citizens was introduced in the House late Friday.
To make arrests, citizen volunteers would have to be trained, and their arrest powers would have to be “specifically authorized” by the governor.
House Bill 20, authored by Tyler GOP Rep. Matt Schaefer, one of the chamber’s most conservative members, is “a bold new approach to border security,” Schaefer said in a written statement.
“Enough is enough. If (President Joe) Biden won’t defend this country, we will,” said Schaefer.
Speaker Dade Phelan, R-Beaumont, promptly declared Schaefer’s HB 20 and HB 7 by Rio Grande City GOP Rep. Ryan Guillen priority bills for the chamber this session.
Guillen’s bill would create a Legislative Border Safety Oversight Committee, create a fund to compensate border area landowners for damage to their property and create court programs to handle border-related legal matters. Schaefer’s bill would create a third-degree felony, “trespass while entering the state of Texas.”
Gov. Greg Abbott’s Operation Lone Star has used a misdemeanor criminal trespassing offense to arrest unauthorized immigrants.
Schaefer, who is chairman of the Texas Freedom Caucus, supported Phelan’s re-election as House speaker in January and is considered a bridge between leadership and the most staunchly conservative Republicans in the chamber.
“Establishing the TBPU will allow the Highway Patrol, Game Wardens, and National Guard to eventually return to their primary missions, and shift to a supporting role in border defense,” he said. “The Texas Legislature, acting with the governor, has the solemn duty to protect Texans and we must do so with a sense of urgency and resolve.”
The bill sparked immediate outrage from civil rights groups and advocates for immigrants, though South Texas landowners who’ve been buffeted by a migrant surge applauded its filing.
The measure, if it became law, could trigger lawsuits that might force the U.S. Supreme Court to revisit its 2012 ruling that knocked down parts — if not all — of Arizona’s controversial “show me your papers” immigration law.
Since last summer, legal experts have surmised that Gov. Greg Abbott was itching to force the high court to reconsider its ruling in Arizona v. U.S., believing the court’s new conservative majority would let states play a more muscular role in border enforcement.
Phelan said in a written statement that HB 20 and HB 7 “when combined, will lead to a safer Texas that overall reduces the cost to taxpayers.” He stressed the importance of bringing the views and voices of border area residents into deliberations over fashioning solutions to “our state’s border and humanitarian crisis.”
‘Tinderbox waiting to explode’
House Democratic Caucus Chairman Trey Martinez Fischer of San Antonio said the bill wasn’t a sincere remedy for a problem. HB 20 “is clearly more about politics than about policy,” he said in a written statement.
Referring to Arizona’s controversial immigration law, SB 1070, which was largely struck down by the U.S. Supreme Court in 2012, Martinez Fischer said: “Let’s be clear, this legislation is a ‘Show me Your Papers bill’ being enforced by a new state police force.”
“Past sessions make clear that extreme legislation like this is the most divisive issue we take up in the House,” he warned Phelan. “HB 20 is a tinderbox waiting to explode that will leave this Session in flames. House Republicans have been warned.”
Rochelle Garza, president of the Texas Civil Rights Project, called Schaefer’s bill a transparent “political power grab” by the governor.
“As a border native and civil rights attorney, I am appalled by this dangerous and unconstitutional proposal designed to violate federal law at the expense of the border community I call home,” said Garza, a Brownsville lawyer who was the Democratic nominee for state attorney general last year. Her group has criticized Abbott’s Operation Lone Star push as discriminatory and counterproductive.
“Not only does this bill mobilize a new military force under the governor, it also allows the head of the force to deputize almost anyone to enforce federal immigration law, including vigilante groups that have targeted Texas border communities,” she said, calling for lawmakers “to invest in real solutions for border communities.”
Kinney County landowner Donna Schuster, who has complained of migrants’ cutting fences and damaging the water system on her family’s cattle ranch near Brackettville in Kinney County, welcomed the Schaefer bill.
“It would be great because the more people that can help us, the better,” Schuster said.
Migrant processing centers the federal government recently set up in Eagle Pass have helped stanch the flow some, she said.
“But there’s only just so much of the river that (Border Patrol) can cover, and the landowners are just being overrun,” Schuster said.
The bill would let the governor name the chief of the Border Protection Unit. It would be under the Public Safety Commission, which oversees the Department of Public Safety.
The new unit could erect and maintain “walls, fences, or other physical barriers along the border with Mexico” and deputize citizens, as well as trained law enforcement officers, to help with border enforcement.
The citizen volunteers could not have been convicted of a felony. They, local law enforcement officers and other police academy-trained personnel whom the Border Protection Unit chief deploys would “have immunity from criminal and civil liability for any actions taken that are authorized” by HB 20.
The bill also would permit the governor to declare or the Legislature to find that a surge of migrants constitutes an invasion or a state of imminent danger, invoking Article 1, Section 10 of the U.S. Constitution.
It is in the section of the Constitution that defines Congress’ powers, such as raising armies and declaring war. “No State shall, without the Consent of Congress ... engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay,” the section says.
In the past few years, Article 1, Section 10 has been cited by staunch conservatives such as former GOP gubernatorial hopeful Don Huffines as permission for states to enforce immigration laws. Most legal scholars, though, say enforcement is a federal responsibility. They note that the Constitution was written at a time when it could take weeks for news of an incident to reach the national capital.
If the invasion or state of imminent danger is declared, the border unit chief could order his force to “deter and repel” unauthorized immigrants between “ports of entry” on the international bridges along the Rio Grande River “to the extent consistent with” the state and federal constitutions and federal immigration law.
The bill also would empower the state border force to “return aliens to Mexico who have been observed actually crossing the Mexican border illegally, and were apprehended or detained in the immediate vicinity of the border.” And Mexican drug cartel “operatives” in the border region could be repelled, arrested or detained.
Also, during public health emergencies or to enforce vaccination edicts, the state could send migrants back across the border. The provision is similar to the federal government’s Title 42 public health order, first used under former President Donald Trump, which justified the quick expulsion of migrants on public health grounds.
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