Bill Text: TX HB40 | 2023 | 88th Legislature 4th Special Session | Introduced
Bill Title: Relating to prohibitions on the illegal entry into or illegal presence in this state by a person who is an alien, the enforcement of those prohibitions, and authorizing under certain circumstances the removal of persons who violate certain of those prohibitions; creating criminal offenses.
Spectrum: Partisan Bill (Republican 4-0)
Status: (Introduced - Dead) 2023-11-07 - Filed [HB40 Detail]
Download: Texas-2023-HB40-Introduced.html
By: Cain | H.B. No. 40 |
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relating to prohibitions on the illegal entry into or illegal | ||
presence in this state by a person who is an alien, the enforcement | ||
of those prohibitions, and authorizing under certain circumstances | ||
the removal of persons who violate certain of those prohibitions; | ||
creating criminal offenses. | ||
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: | ||
SECTION 1. Title 10, Penal Code, is amended by adding | ||
Chapter 51 to read as follows: | ||
CHAPTER 51. ILLEGAL ENTRY INTO THIS STATE | ||
Sec. 51.01. DEFINITIONS. In this chapter: | ||
(1) "Alien" has the meaning assigned by 8 U.S.C. | ||
Section 1101, as that provision existed on January 1, 2023. | ||
(2) "Child" means a person younger than 18 years of | ||
age. | ||
(3) "Port of entry" means a port of entry in the United | ||
States as designated by 19 C.F.R. Part 101. | ||
Sec. 51.015. ENFORCEMENT PROHIBITED IN CERTAIN LOCATIONS. | ||
Notwithstanding any other provision of this chapter, a peace | ||
officer may not arrest, remove, or otherwise detain a person for | ||
purposes of enforcing a provision of this chapter if the person is | ||
on the premises or grounds of: | ||
(1) a public or private primary or secondary school; | ||
(2) a church, synagogue, or other established place of | ||
religious worship; or | ||
(3) a hospital licensed under Chapter 241, Health and | ||
Safety Code. | ||
Sec. 51.016. ENFORCEMENT PROHIBITED IN CERTAIN LOCATIONS. | ||
Notwithstanding any other provision of this chapter, a peace | ||
officer may not arrest, remove, or otherwise detain a person for | ||
purposes of enforcing a provision of this chapter if, for purposes | ||
of obtaining a forensic medical examination and treatment, the | ||
person is on the premises or grounds of a SAFE-ready facility, as | ||
defined by Section 323.001, Health and Safety Code, or another | ||
facility that provides forensic medical examinations to sexual | ||
assault survivors in accordance with Chapter 323, Health and Safety | ||
Code. | ||
Sec. 51.02. ILLEGAL ENTRY FROM FOREIGN NATION. (a) A | ||
person who is an alien commits an offense if the person enters or | ||
attempts to enter this state directly from a foreign nation at any | ||
location other than a lawful port of entry. | ||
(b) An offense under this section is a Class B misdemeanor, | ||
except that the offense is a state jail felony if it is shown on the | ||
trial of the offense that the defendant has been previously | ||
convicted of an offense under this section. | ||
(c) It is an affirmative defense to prosecution under this | ||
section that: | ||
(1) the federal government has granted the defendant: | ||
(A) lawful presence in the United States; or | ||
(B) asylum under 8 U.S.C. Section 1158; | ||
(2) the defendant's conduct does not constitute a | ||
violation of 8 U.S.C. Section 1325(a); or | ||
(3) the defendant was approved for benefits under the | ||
federal Deferred Action for Childhood Arrivals program between June | ||
15, 2012, and July 16, 2021. | ||
(d) The following federal programs do not provide an | ||
affirmative defense for purposes of Subsection (c)(1): | ||
(1) the Deferred Action for Parents of Americans and | ||
Lawful Permanent Residents program; and | ||
(2) any program not enacted by the United States | ||
Congress that is a successor to or materially similar to the program | ||
described by Subsection (c)(3) or Subdivision (1). | ||
(e) Notwithstanding any other law, a peace officer who is | ||
charging a person detained for a violation of this section with | ||
committing an offense under this section may, in lieu of arresting | ||
the person or taking the person before a magistrate, remove the | ||
person by: | ||
(1) collecting available identifying information of | ||
the person, which may include the use of photographic and biometric | ||
measures that are cross-referenced with all relevant local, state, | ||
and federal criminal databases; | ||
(2) transporting the person to a port of entry; and | ||
(3) ordering the person to return to the foreign | ||
nation from which the person entered or attempted to enter. | ||
(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 defendant is pending. | ||
Sec. 51.03. ILLEGAL REENTRY BY CERTAIN ALIENS. (a) A | ||
person who is an alien commits an offense if the person enters, | ||
attempts to enter, or is at any time found in this state after the | ||
person: | ||
(1) has been denied admission to or excluded, | ||
deported, or removed from the United States; or | ||
(2) has departed from the United States while an order | ||
of exclusion, deportation, or removal is outstanding. | ||
(b) An offense under this section is a Class A misdemeanor, | ||
except that the offense is: | ||
(1) a felony of the third degree if: | ||
(A) the defendant's removal was subsequent to a | ||
conviction for commission of two or more misdemeanors involving | ||
drugs, crimes against a person, or both; | ||
(B) the defendant was excluded pursuant to 8 | ||
U.S.C. Section 1225(c) because the defendant was excludable under 8 | ||
U.S.C. Section 1182(a)(3)(B); | ||
(C) the defendant was removed pursuant to the | ||
provisions of 8 U.S.C. Chapter 12, Subchapter V; or | ||
(D) the defendant was removed pursuant to 8 | ||
U.S.C. Section 1231(a)(4)(B); or | ||
(2) a felony of the second degree if the defendant was | ||
removed subsequent to a conviction for the commission of a felony. | ||
(c) For purposes of Subsections (a) and (b), "removal" | ||
includes any agreement in which an alien stipulates to removal | ||
pursuant to a criminal proceeding under either federal or state | ||
law. | ||
(d) Notwithstanding any other law, a peace officer who is | ||
charging a person detained for a violation of this section with | ||
committing an offense under this section may, in lieu of arresting | ||
the person or taking the person before a magistrate, remove the | ||
person by: | ||
(1) collecting available identifying information of | ||
the person, which may include the use of photographic and biometric | ||
measures that are cross-referenced with all relevant local, state, | ||
and federal criminal databases; | ||
(2) transporting the person to a port of entry; and | ||
(3) ordering the person to return to the foreign | ||
nation from which the person entered or attempted to enter. | ||
(e) 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 defendant is pending. | ||
Sec. 51.04. REFUSAL TO COMPLY WITH ORDER TO RETURN TO | ||
FOREIGN NATION. (a) A person who is an alien commits an offense if, | ||
following a violation of Section 51.02 or 51.03, the person refuses | ||
to comply with a peace officer's order under Section 51.02(e) or | ||
51.03(d) to return to the foreign nation from which the person | ||
entered or attempted to enter. | ||
(b) An offense under this section is a felony of the second | ||
degree. | ||
Sec. 51.05. CERTAIN ACTS PROHIBITED. A peace officer | ||
enforcing Section 51.02 or 51.03 may not: | ||
(1) push a child into water; | ||
(2) deny a child access to drinking water; or | ||
(3) deny a child urgent medical care. | ||
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 CERTAIN CRIMINAL OFFENSES INVOLVING ILLEGAL ENTRY | ||
INTO THIS STATE | ||
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 Chapter 51, 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 Chapter 51, | ||
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 Chapter 51, 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 Chapter 51, 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. 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 4. This Act takes effect December 1, 2023, if it | ||
receives a vote of two-thirds of all the members elected to each | ||
house, as provided by Section 39, Article III, Texas Constitution. | ||
If this Act does not receive the vote necessary for effect on that | ||
date, this Act takes effect on the 91st day after the last day of the | ||
legislative session. |