Bill Text: TX HB4 | 2023 | 88th Legislature 3rd Special Session | Comm Sub
Bill Title: Relating to the creation of the criminal offense of improper entry from a foreign nation and indemnification of certain claims relating to the enforcement of that offense.
Spectrum: Partisan Bill (Republican 60-0)
Status: (Engrossed - Dead) 2023-11-02 - Committee report printed and distributed [HB4 Detail]
Download: Texas-2023-HB4-Comm_Sub.html
| By: Spiller, et al. (Senate Sponsor - Birdwell) | H.B. No. 4 | |
| (In the Senate - Received from the House October 26, 2023; | ||
| October 26, 2023, read first time and referred to Committee on | ||
| Border Security; November 2, 2023, reported adversely, with | ||
| favorable Committee Substitute by the following vote: Yeas 3, | ||
| Nays 2; November 2, 2023, sent to printer.) | ||
| COMMITTEE VOTE YeaNayAbsent PNVBirdwell X Flores X Blanco X Hinojosa X King X COMMITTEE SUBSTITUTE FOR H.B. No. 4 | By: Birdwell | |
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| relating to the creation of the criminal offense of improper entry | ||
| from a foreign nation and indemnification of certain claims | ||
| relating to the enforcement of that offense. | ||
| BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: | ||
| SECTION 1. Chapter 38, Penal Code, is amended by adding | ||
| Section 38.20 to read as follows: | ||
| Sec. 38.20. IMPROPER ENTRY FROM FOREIGN NATION. (a) In | ||
| this section, "alien" has the meaning assigned by 8 U.S.C. Section | ||
| 1101, as that provision existed on January 1, 2023. | ||
| (b) A person who is an alien commits an offense if the | ||
| person: | ||
| (1) enters or attempts to enter this state from a | ||
| foreign nation at any location other than a lawful point of entry; | ||
| (2) eludes examination or inspection by United States | ||
| immigration officers; or | ||
| (3) attempts to enter or obtains entry to this state | ||
| from a foreign nation by an intentionally false or misleading | ||
| representation or the intentional concealment of a material fact. | ||
| (c) An offense under this section is a Class B misdemeanor, | ||
| except that if it is shown on the trial of the offense that the | ||
| person has previously been finally convicted of: | ||
| (1) an offense under this section, the offense is a | ||
| state jail felony; | ||
| (2) a state jail felony described by Subdivision (1) | ||
| or any other felony not listed in Article 42A.054(a), Code of | ||
| Criminal Procedure, the offense is a felony of the second degree; or | ||
| (3) a felony listed in Article 42A.054(a), Code of | ||
| Criminal Procedure, the offense is a felony of the first degree. | ||
| (d) It is an affirmative defense to prosecution under this | ||
| section that: | ||
| (1) the actor has been granted a federal immigration | ||
| benefit entitling the actor to: | ||
| (A) lawful presence in the United States; or | ||
| (B) asylum under 8 U.S.C. Section 1158; | ||
| (2) the actor's conduct does not constitute a | ||
| violation of 8 U.S.C. Section 1325(a); or | ||
| (3) the actor was approved for benefits under the | ||
| federal Deferred Action for Childhood Arrivals program between June | ||
| 15, 2012, and July 16, 2021. | ||
| (e) For purposes of Subsection (d)(1), the following | ||
| federal programs do not confer federal immigration benefits | ||
| entitling the actor to lawful presence in the United States: | ||
| (1) the Deferred Action for Parents of Americans and | ||
| Lawful Permanent Residents; and | ||
| (2) any program not enacted by the United States | ||
| Congress that is a successor to or materially similar to the program | ||
| described by Subdivision (1) or Subsection (d)(3). | ||
| (f) A court may not abate the prosecution of an offense | ||
| under this section on the basis that a federal determination | ||
| regarding the immigration status of the actor is pending. | ||
| (g) A law enforcement officer of the Department of Public | ||
| Safety who arrests a person for an offense under this section shall, | ||
| to the extent feasible, detain the person in a facility established | ||
| under Operation Lone Star or a similar border security operation of | ||
| this state. | ||
| (h) A peace officer may not arrest a person for an offense | ||
| under this section unless the officer has probable cause to believe | ||
| that the person engaged in the conduct constituting the offense. | ||
| (i) On conviction of an offense under this section, the | ||
| judge shall enter in the judgment in the case an order requiring | ||
| that the person be returned to federal authorities at the nearest | ||
| port of entry for return to the person's country of origin or the | ||
| foreign nation from which the person entered or attempted to enter. | ||
| An order issued under this subsection: | ||
| (1) takes effect on completion of a term of | ||
| confinement or imprisonment imposed by the judgment; and | ||
| (2) must include the manner of transportation of the | ||
| person to the port of entry and the state agency responsible for | ||
| transporting the person and monitoring compliance with the order. | ||
| SECTION 2. Title 5, Civil Practice and Remedies Code, is | ||
| amended by adding Chapter 117 to read as follows: | ||
| CHAPTER 117. INDEMNIFICATION OF CERTAIN CLAIMS RELATING TO | ||
| ENFORCEMENT OF OFFENSE OF IMPROPER ENTRY FROM FOREIGN NATION | ||
| Sec. 117.001. DEFINITION. In this chapter, "damages" | ||
| includes any and all damages, fines, fees, penalties, court costs, | ||
| attorney's fees, or other assessments. | ||
| Sec. 117.002. LOCAL GOVERNMENT INDEMNIFICATION OF LOCAL | ||
| GOVERNMENT OFFICIALS, EMPLOYEES, AND CONTRACTORS. (a) Unless the | ||
| court or jury determines that the official, employee, or contractor | ||
| acted in bad faith, with conscious indifference, or with | ||
| recklessness, a local government shall indemnify an official, | ||
| employee, or contractor of the local government for damages arising | ||
| from a cause of action resulting from an action taken by the | ||
| official, employee, or contractor to enforce Section 38.20, Penal | ||
| Code, during the course and scope of the official's, employee's, or | ||
| contractor's office, employment, or contractual performance for or | ||
| service on behalf of the local government. | ||
| (b) Indemnification payments made under Subsection (a) by a | ||
| local government may not exceed: | ||
| (1) $100,000 to any one person or $300,000 for any | ||
| single occurrence in the case of personal injury or death; or | ||
| (2) $10,000 for a single occurrence of property | ||
| damage. | ||
| (c) A local government shall indemnify an official, | ||
| employee, or contractor of the local government for reasonable | ||
| attorney's fees incurred in defense of a criminal prosecution | ||
| against the official, employee, or contractor for an action taken | ||
| by the official, employee, or contractor to enforce Section 38.20, | ||
| Penal Code, during the course and scope of the official's, | ||
| employee's, or contractor's office, employment, or contractual | ||
| performance for or service on behalf of the local government. | ||
| (d) This section may not be construed to waive any statutory | ||
| limits on damages under state law. | ||
| Sec. 117.003. STATE INDEMNIFICATION OF STATE OFFICIALS, | ||
| EMPLOYEES, AND CONTRACTORS; ATTORNEY GENERAL REPRESENTATION. (a) | ||
| Unless the court or jury determines that the state official, | ||
| employee, or contractor acted in bad faith, with conscious | ||
| indifference, or with recklessness, the state shall indemnify an | ||
| elected or appointed state official or a state employee or | ||
| contractor for damages arising from a cause of action resulting | ||
| from an action taken by the official, employee, or contractor to | ||
| enforce Section 38.20, Penal Code, during the course and scope of | ||
| the official's, employee's, or contractor's office, employment, or | ||
| contractual performance for or service on behalf of the state. | ||
| (b) Notwithstanding any other law, indemnification under | ||
| Subsection (a) is not subject to any indemnification limits under | ||
| state law. | ||
| (c) The state shall indemnify a state official, employee, or | ||
| contractor for reasonable attorney's fees incurred in defense of a | ||
| criminal prosecution against the official, employee, or contractor | ||
| for an action taken by the official, employee, or contractor to | ||
| enforce Section 38.20, Penal Code, during the course and scope of | ||
| the official's, employee's, or contractor's office, employment, or | ||
| contractual performance for or service on behalf of the state. | ||
| (d) A state official, employee, or contractor who may be | ||
| entitled to indemnification under Subsection (a) is entitled to | ||
| representation by the attorney general, subject to Chapter 104, in | ||
| an action in connection with which the official, employee, or | ||
| contractor may be entitled to that indemnification. | ||
| (e) This section may not be construed to waive any statutory | ||
| limits on damages under state law. | ||
| Sec. 117.004. APPEAL TO SUPREME COURT. For a civil action | ||
| brought against a person who may be entitled under Section 117.002 | ||
| or 117.003 to indemnification for damages awarded against the | ||
| person in the action, an appeal must be taken directly to the | ||
| supreme court. | ||
| Sec. 117.005. OTHER LAWS NOT AFFECTED. This chapter does | ||
| not affect a defense, immunity, or jurisdictional bar available to | ||
| the state or a local government or an official, employee, or | ||
| contractor of the state or a local government. | ||
| SECTION 3. Subchapter B, Chapter 42A, Code of Criminal | ||
| Procedure, is amended by adding Article 42A.059 to read as follows: | ||
| Art. 42A.059. PLACEMENT ON COMMUNITY SUPERVISION | ||
| PROHIBITED FOR IMPROPER ENTRY FROM FOREIGN NATION. Notwithstanding | ||
| any other provision of this chapter, a defendant is not eligible for | ||
| community supervision, including deferred adjudication community | ||
| supervision, under this chapter if the defendant is charged with or | ||
| convicted of an offense under Section 38.20, Penal Code. | ||
| SECTION 4. Section 508.145(a), Government Code, is amended | ||
| to read as follows: | ||
| (a) An inmate is not eligible for release on parole if the | ||
| inmate is under sentence of death, serving a sentence of life | ||
| imprisonment without parole, or serving a sentence for any of the | ||
| following offenses under the Penal Code: | ||
| (1) Section 20A.03, if the offense is based partly or | ||
| wholly on conduct constituting an offense under Section | ||
| 20A.02(a)(5), (6), (7), or (8); | ||
| (2) Section 21.02; [ |
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| (3) Section 22.021, if the offense is punishable under | ||
| Subsection (f) of that section; or | ||
| (4) Section 38.20. | ||
| SECTION 5. Section 508.149, Government Code, is amended by | ||
| adding Subsection (a-1) to read as follows: | ||
| (a-1) An inmate serving a sentence for an offense under | ||
| Section 38.20, Penal Code, may not be released to mandatory | ||
| supervision. | ||
| SECTION 6. It is the intent of the legislature that every | ||
| provision, section, subsection, sentence, clause, phrase, or word | ||
| in this Act, and every application of the provisions in this Act to | ||
| every person, group of persons, or circumstances, is severable from | ||
| each other. If any application of any provision in this Act to any | ||
| person, group of persons, or circumstances is found by a court to be | ||
| invalid for any reason, the remaining applications of that | ||
| provision to all other persons and circumstances shall be severed | ||
| and may not be affected. | ||
| SECTION 7. This Act takes effect on the 91st day after the | ||
| last day of the legislative session. | ||
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