AUSTIN, Texas — A sweeping border security bill that critics say would empower Texas law enforcement officers to enforce immigration laws passed the state Senate on Wednesday.
The bill would create a new state crime of “improper entry from foreign nation” and establish a new border enforcement unit that would be permanently deployed along the Texas-Mexico border.
The measure received approval from the Senate along party lines in a 19-11 vote. The bill now heads back to the House where the lower chamber will need to accept the changes before it can head to the governor.
Democratic senators took aim at how the bill would authorize officers of the Texas Border Force to arrest migrants who enter Texas illegally. That encroaches on the federal government’s responsibility to enforce immigration laws, they said.
If the bill becomes law, as expected, it likely would be challenged in court. Under a 2012 U.S. Supreme Court decision, states generally cannot encroach on the federal government’s job of enforcing immigration. Texas Attorney General Ken Paxton has told lawmakers in previous months he would like to challenge the precedent set in Arizona vs. United States.
“We can use different terminology, but the reality is that we are enforcing immigration law,” said Democratic Sen. Juan “Chuy” Hinojosa of McAllen.
Senate author Brian Birdwell, R-Granbury, disagreed.
“If individuals obey the law as we’ve passed it here and they go to the ports of entry, immigration services and the Border Patrol will issue that individual” a form to apply for asylum in the U.S., Birdwell said.
Under the proposed new offense, a migrant who enters Texas from Mexico illegally would be charged with a Class A misdemeanor, which carries a penalty of up to a year in jail and a $4,000 fine. The charge could escalate to a felony if a migrant previously was convicted of a crime.
A standalone Senate bill by Birdwell that also would have created the same new state crime died in the House late Tuesday night.
The newly drafted House proposal creates a 10-year prison sentence for human smugglers and forbids local municipalities from limiting the authority or jurisdiction of the unit. The new border unit would be housed under the Texas Rangers. Rangers chief Jason Taylor would serve as the unit chief. He would report to Department of Public Safety Director Steve McCraw.
The proposal would drastically change Texas’ border security operations, which has been a priority for Gov. Greg Abbott and other members of Republican leadership in the Legislature.
Operation Lone Star is stretching into its third year and has already cost the state at least $4.6 billion. It has consisted of rotating soldiers from the Texas National Guard and DPS officers into the border region. Members of the new force would be permanently stationed in the region.
Abbott has largely not commented on the newly proposed border unit. At a news conference in Brownsville earlier this month, Abbott said Texas has a right to secure its border and blamed the federal government and the Biden administration for being too lax in enforcing immigration law.
Abbott’s office did not immediately respond to questions on whether the governor supports the proposal. In early May, the governor deployed a Texas Tactical Border Force of Texas National Guard members a few days before the end of Title 42, a pandemic-era policy that allowed for the quick expulsion of migrants.
The sweeping legislation that the Senate voted on differs from what the House sent over earlier this month — and what had been proposed at the beginning of the session. At first, the House and Speaker Dade Phelan introduced a priority bill creating the Border Protection Unit, a group under the Department of Public Safety that would have employed commissioned peace officers and noncommissioned officers — U.S. citizens — to enforce border security.
That bill drew outrage from Democrats, immigration rights advocates and civil rights groups, who said it would create a “vigilante” unit. That proposal, however, died in the House after Democrats used a legislative tactic to kill the bill ahead of a legislative deadline. The unit was piggybacked onto another bill by Rep. Ryan Guillen, R-Rio Grande City, and voted out of the House.
While laying the House bill out Tuesday night, Birdwell said there were several problems with it when it was received from the lower chamber, particularly with the structure of the unit and chain of command. Originally, McCraw would have had no authority over the new unit. Abbott would have been the only person charged with hiring and firing the unit chief.
Birdwell said the newly amended House bill “will enhance border security operations, provide more tools to law enforcement and prosecutors and increase the safety of the border region in Texas.”
Senators made additional changes, including one by Sen. Phil King, R-Weatherford, specifying that only commissioned peace officers of the border force would be allowed to arrest migrants and carry weapons. Noncommissioned employees would only act in support of commissioned officers.
After final Senate action, the House can accept the Senate’s changes or both chambers would select a group of lawmakers to negotiate the difference. The deadline for House-Senate conference committees to report is Friday.
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