Bill Text: TX SB4 | 2017-2018 | 85th Legislature | Engrossed


Bill Title: Relating to the enforcement by certain state and local governmental entities and campus police departments of state and federal laws governing immigration and to related duties of certain law enforcement and judicial entities in the criminal justice system; providing civil and criminal penalties.

Spectrum: Partisan Bill (Republican 20-0)

Status: (Engrossed) 2017-03-15 - Left pending in committee [SB4 Detail]

Download: Texas-2017-SB4-Engrossed.html
 
 
  By: Perry, et al. S.B. No. 4
 
 
A BILL TO BE ENTITLED
 
AN ACT
  relating to the enforcement by certain state and local governmental
  entities and campus police departments of state and federal laws
  governing immigration and to related duties of certain law
  enforcement and judicial entities in the criminal justice system;
  providing civil and criminal penalties.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Subchapter B, Chapter 101, Civil Practice and
  Remedies Code, is amended by adding Section 101.0216 to read as
  follows:
         Sec. 101.0216.  LIABILITY OF STATE, COUNTY, OR MUNICIPALITY
  FOR FAILURE TO COMPLY WITH IMMIGRATION DETAINER REQUEST.
  (a)  Except as provided by Subsection (d), a state criminal justice
  agency, county, or municipality that releases from custody a person
  who is the subject of an immigration detainer request issued by
  United States Immigration and Customs Enforcement is liable for
  damages resulting from a felony committed by the person in this
  state within 10 years following the person's release if:
               (1)  the state criminal justice agency, county, or
  municipality did not detain the person as requested;
               (2)  the person was not a citizen of the United States
  at the time of release; and
               (3)  the attorney general has petitioned the chief
  justice of the supreme court to convene the special three-judge
  district court under Section 752.055 to hear an action brought
  under that section against the county or municipality.
         (a-1)  An immigration detainer request described by
  Subsection (a) is presumed to be valid, regardless of whether the
  detainer is written or verbal.
         (b)  This section does not create liability for damages that
  a person who is subject to an immigration detainer request sustains
  following the person's release by a state criminal justice agency,
  county, or municipality.
         (c)  Sovereign immunity of the state and governmental
  immunity of a county and municipality to suit is waived and
  abolished to the extent of liability created by this section.
         (d)  A state criminal justice agency, county, or
  municipality is not liable under Subsection (a) for damages
  incurred after United States Immigration and Customs Enforcement
  subsequently detains the person described by that subsection.
         (e)  In this section, "state criminal justice agency" has the
  meaning assigned by Section 752.051, Government Code.
         SECTION 2.  Chapter 2, Code of Criminal Procedure, is
  amended by adding Articles 2.251 and 2.252 to read as follows:
         Art. 2.251.  ENFORCEMENT OF FEDERAL IMMIGRATION LAW.  (a)  A
  peace officer may not stop a motor vehicle or conduct a search of a
  business or residence solely to enforce a federal law relating to
  aliens, immigrants, or immigration, including the federal
  Immigration and Nationality Act (8 U.S.C. Section 1101 et seq.),
  unless the officer is acting:
               (1)  at the request of, or providing assistance to, an
  appropriate federal law enforcement officer; or
               (2)  under the terms of an agreement between the law
  enforcement agency employing the officer and the federal government
  under which the agency receives delegated authority to enforce
  federal law relating to aliens, immigrants, or immigration.
         (b)  A peace officer may arrest an alien not lawfully present
  in the United States only if the officer is acting under the
  authority granted under Article 2.13.
         Art. 2.252.  DUTIES RELATED TO IMMIGRATION DETAINER
  REQUESTS. (a)  A law enforcement agency that has custody of a
  person subject to an immigration detainer request issued by United
  States Immigration and Customs Enforcement shall comply with,
  honor, and fulfill any request made in the detainer request and in
  any other instrument provided by the federal government.
         (b)  A law enforcement agency shall presume an immigration
  detainer request is based on probable cause and is otherwise valid,
  regardless of whether the detainer request is written or verbal.
         (c)  Notwithstanding Subsection (b), a law enforcement
  agency is not required to perform a duty imposed by Subsection (a)
  with respect to a person who has provided proof that the person is a
  citizen of the United States.
         SECTION 3.  Chapter 42, Code of Criminal Procedure, is
  amended by adding Article 42.039 to read as follows:
         Art. 42.039.  COMPLETION OF SENTENCE IN FEDERAL CUSTODY.
  (a)  This article applies only to a criminal case in which:
               (1)  the judgment requires the defendant to be confined
  in a secure correctional facility; and
               (2)  the defendant is subject to an immigration
  detainer request.
         (b)  In a criminal case described by Subsection (a), the
  judge shall, at the time of pronouncement of a sentence of
  confinement, issue an order requiring the secure correctional
  facility in which the defendant is to be confined and all
  appropriate government officers, including a sheriff, a warden, or
  members of the Board of Pardons and Paroles, as appropriate, to
  require the defendant to serve in federal custody the final portion
  of the defendant's sentence, not to exceed a period of seven days,
  following the facility's or officer's determination that the change
  in the place of confinement will facilitate the seamless transfer
  of the defendant into federal custody. In the absence of an order
  issued under this article, a facility or officer acting under
  exigent circumstances may perform the transfer after making the
  determination described by this subsection. This subsection
  applies only if appropriate officers of the federal government
  consent to the transfer of the defendant into federal custody under
  the circumstances described by this subsection.
         (c)  If the applicable information described by Subsection
  (a)(2) is not available at the time sentence is pronounced in the
  case, the judge shall issue the order described by Subsection (b) as
  soon as the information becomes available. The judge retains
  jurisdiction for the purpose of issuing an order under this
  article.
         (d)  For purposes of this article, "secure correctional
  facility" has the meaning assigned by Section 1.07, Penal Code.
         SECTION 4.  Section 22A.001(a), Government Code, is amended
  to read as follows:
         (a)  The attorney general may petition the chief justice of
  the supreme court to convene a special three-judge district court
  in any suit:
               (1)  filed in a district court in this state in which
  this state or a state officer or agency is a defendant in a claim
  that:
                     (A) [(1)]  challenges the finances or operations
  of this state's public school system; or
                     (B) [(2)]  involves the apportionment of
  districts for the house of representatives, the senate, the State
  Board of Education, or the United States Congress, or state
  judicial districts; or
               (2)  involving an alleged violation of Section 752.053
  by a local entity, state criminal justice agency, or campus police
  department of an institution of higher education.
         SECTION 5.  Chapter 752, Government Code, is amended by
  adding Subchapter C to read as follows:
  SUBCHAPTER C. ENFORCEMENT OF STATE AND FEDERAL IMMIGRATION LAWS BY
  LOCAL ENTITIES, STATE CRIMINAL JUSTICE AGENCIES, AND CAMPUS POLICE
  DEPARTMENTS
         Sec. 752.051.  DEFINITIONS. In this subchapter:
               (1)  "Campus police department" means a law enforcement
  agency of an institution of higher education.
               (2)  "Immigration detainer request" means a federal
  government request to a local entity, state criminal justice
  agency, or campus police department to maintain temporary custody
  of an alien. The term includes verbal and written requests,
  including a United States Department of Homeland Security Form
  I-247 document or a similar or successor form.
               (3)  "Immigration laws" means the laws of this state or
  federal law relating to aliens, immigrants, or immigration,
  including the federal Immigration and Nationality Act (8 U.S.C.
  Section 1101 et seq.).
               (4)  "Institution of higher education" means:
                     (A)  an institution of higher education as defined
  by Section 61.003, Education Code; or
                     (B)  a private or independent institution of
  higher education as defined by Section 61.003, Education Code.
               (5)  "Lawful detention" means the detention of an
  individual by a local entity, state criminal justice agency, or
  campus police department for the investigation of a criminal
  offense. The term excludes a detention if the sole reason for the
  detention is that the individual:
                     (A)  is a victim of or witness to a criminal
  offense; or
                     (B)  is reporting a criminal offense.
               (6)  "Local entity" means:
                     (A)  the governing body of a municipality, county,
  or special district or authority, subject to Section 752.052;
                     (B)  an officer or employee of or a division,
  department, or other body that is part of a municipality, county, or
  special district or authority, including a sheriff, municipal
  police department, municipal attorney, or county attorney; and
                     (C)  a district attorney or criminal district
  attorney.
               (7)  "Policy" includes a formal, written rule, order,
  ordinance, or policy and an informal, unwritten policy.
               (8)  "State criminal justice agency" means a state
  agency that is engaged in the administration of criminal justice
  under a statute or executive order and allocates a substantial part
  of its annual budget to the administration of criminal justice.
         Sec. 752.052.  APPLICABILITY OF SUBCHAPTER. (a)  This
  subchapter does not apply to a school district or open-enrollment
  charter school. This subchapter does not apply to the release of
  information contained in education records of an educational agency
  or institution, except in conformity with the Family Educational
  Rights and Privacy Act of 1974 (20 U.S.C. Section 1232g).
         (b)  Subject to Subsection (c), this subchapter does not
  apply to a hospital or hospital district created under Subtitle C or
  D, Title 4, Health and Safety Code, or a hospital district created
  under a general or special law authorized by Article IX, Texas
  Constitution, to the extent that the hospital or hospital district
  is providing access to or delivering medical or health care
  services as required under the following applicable federal or
  state laws:
               (1)  42 U.S.C. Section 1395dd;
               (2)  42 U.S.C. Section 1396b(v);
               (3)  Subchapter C, Chapter 61, Health and Safety Code;
               (4)  Chapter 81, Health and Safety Code; and
               (5)  Section 311.022, Health and Safety Code.
         (c)  Subsection (b) does not exclude the application of this
  subchapter to a commissioned peace officer employed by or
  commissioned by a hospital or hospital district otherwise subject
  to Subsection (b).
         (d)  This subchapter does not apply to the public health
  department of a local entity.
         (e)  This subchapter does not apply to a commissioned peace
  officer employed or contracted by a religious organization during
  the officer's employment with the organization or while the officer
  is performing the contract.
         Sec. 752.053.  POLICIES AND ACTIONS REGARDING IMMIGRATION
  ENFORCEMENT. (a)  A local entity, state criminal justice agency,
  or campus police department shall not:
               (1)  adopt, enforce, or endorse a policy under which
  the entity, agency, or department prohibits or discourages the
  enforcement of immigration laws;
               (2)  by consistent actions prohibit or discourage the
  enforcement of immigration laws; or
               (3)  for an entity that is a law enforcement agency, for
  an agency, or for a department, by consistent actions intentionally
  violate Article 2.252, Code of Criminal Procedure.
         (b)  In compliance with Subsection (a), a local entity, state
  criminal justice agency, or campus police department shall not
  prohibit or discourage a person who is a commissioned peace officer
  described by Article 2.12, Code of Criminal Procedure, a
  corrections officer, a booking clerk, a magistrate, or a district
  attorney, criminal district attorney, or other prosecuting
  attorney and who is employed by or otherwise under the direction or
  control of the entity, agency, or department from doing any of the
  following:
               (1)  inquiring into the immigration status of a person
  under a lawful detention or under arrest;
               (2)  with respect to information relating to the
  immigration status, lawful or unlawful, of any person under a
  lawful detention or under arrest, including information regarding
  the person's place of birth:
                     (A)  sending the information to or requesting or
  receiving the information from United States Citizenship and
  Immigration Services, United States Immigration and Customs
  Enforcement, or another relevant federal agency;
                     (B)  maintaining the information; or
                     (C)  exchanging the information with another
  local entity, state criminal justice agency, or campus police
  department or a federal or state governmental entity;
               (3)  assisting or cooperating with a federal
  immigration officer as reasonable or necessary, including
  providing enforcement assistance; or
               (4)  permitting a federal immigration officer to enter
  and conduct enforcement activities at a jail to enforce federal
  immigration laws.
         Sec. 752.054.  DISCRIMINATION PROHIBITED. A local entity, a
  state criminal justice agency, a campus police department, or a
  person employed by or otherwise under the direction or control of
  the entity, agency, or department may not consider race, color,
  religion, language, or national origin while enforcing immigration
  laws except to the extent permitted by the United States
  Constitution or Texas Constitution.
         Sec. 752.055.  COMPLAINT; EQUITABLE RELIEF. (a)  Any
  person, including the federal government, may file a complaint with
  the attorney general if the person offers evidence to support an
  allegation that a local entity, state criminal justice agency, or
  campus police department is violating Section 752.053. The person
  must include with the complaint the evidence the person has that
  supports the complaint.
         (b)  A local entity, state criminal justice agency, or campus
  police department for which the attorney general has received a
  complaint under Subsection (a) shall comply with a document
  request, including a request for supporting documents, from the
  attorney general related to the complaint.
         (c)  If the attorney general determines that a complaint
  filed under Subsection (a) against a local entity, state criminal
  justice agency, or campus police department is valid, the attorney
  general shall, not later than the 10th day after the date of the
  determination, provide written notification to the entity, agency,
  or department that:
               (1)  the complaint has been filed;
               (2)  the attorney general has determined that the
  complaint is valid;
               (3)  the attorney general is authorized to file an
  action to enjoin the violation if the entity, agency, or department
  does not come into compliance with the requirements of Section
  752.053 on or before the 90th day after the date the notification is
  provided; and
               (4)  the entity and each entity that is under the
  jurisdiction of the local entity, agency, or department will be
  denied state grant funds for the state fiscal year following the
  year in which a final judicial determination in an action brought
  under Subsection (e) is made.
         (d)  Not later than the 30th day after the day a local entity,
  state criminal justice agency, or campus police department receives
  written notification under Subsection (c), the entity, agency, or
  department shall provide the attorney general with a copy of:
               (1)  the entity's, agency's, or department's written
  policies related to immigration enforcement actions;
               (2)  each immigration detainer request received by the
  entity, agency, or department from the United States Department of
  Homeland Security; and
               (3)  each response sent by the entity, agency, or
  department for a detainer request described by Subdivision (2).
         (e)  If the attorney general determines that a complaint
  filed under Subsection (a) is valid, the attorney general may
  petition the chief justice of the supreme court to convene the
  special three-judge district court described by Chapter 22A to hear
  a petition for a writ of mandamus or other appropriate equitable
  relief to compel the local entity, state criminal justice agency,
  or campus police department that is violating Section 752.053 to
  comply with that section.  The court shall be convened in Travis
  County or the county in which the principal office of the entity,
  agency, or department is located. The attorney general may recover
  reasonable expenses incurred in obtaining relief under this
  subsection, including court costs, reasonable attorney's fees,
  investigative costs, witness fees, and deposition costs.
         (f)  An appeal of a suit brought under Subsection (e) is
  governed by the procedures for accelerated appeals in civil cases
  under the Texas Rules of Appellate Procedure.  The appellate court
  shall render its final order or judgment with the least possible
  delay.
         Sec. 752.0555.  CIVIL PENALTY. (a)  A local entity, state
  criminal justice agency, or campus police department that violates
  Section 752.053 is subject to a civil penalty in an amount:
               (1)  not less than $1,000 and not more than $1,500 for
  the first violation; and
               (2)  not less than $25,000 and not more than $25,500 for
  each subsequent violation.
         (b)  Each day of a continuing violation of Section 752.053
  constitutes a separate violation for the civil penalty under this
  section.
         (c)  The three-judge district court that hears an action
  brought under Section 752.055 against the local entity, state
  criminal justice agency, or campus police department shall
  determine the amount of the civil penalty under this section.
         (d)  A civil penalty collected under this section shall be
  deposited to the credit of the compensation to victims of crime fund
  established under Subchapter B, Chapter 56, Code of Criminal
  Procedure.
         (e)  Governmental immunity of a county and municipality to
  suit is waived and abolished to the extent of liability created by
  this section.
         Sec. 752.0556.  CRIMINAL OFFENSE. (a)  An elected official
  of a municipality, county, or special district or authority, or an
  individual who is appointed by the governing body of a
  municipality, county, or special district or authority, who
  intentionally or knowingly violates Section 752.053 commits an
  offense.
         (b)  An offense under this section is a Class A misdemeanor.
         Sec. 752.056.  DENIAL OF STATE GRANT FUNDS; DATABASE.
  (a)  A local entity, including each entity under the jurisdiction
  of the local entity, a state criminal justice agency, or a campus
  police department may not receive state grant funds if the local
  entity, agency, or department violates Section 752.053.
         (b)  Except as provided by Subsection (c), state grant funds
  for a local entity, state criminal justice agency, or campus police
  department shall be denied beginning with the state fiscal year
  following the year in which a final judicial determination in an
  action brought under Section 752.055 is made that the local entity,
  agency, or department has intentionally violated Section 752.053.  
  State grant funds shall continue to be denied until reinstated
  under Section 752.057.
         (c)  State grant funds for the provision of wearable body
  protective gear used for law enforcement purposes may not be denied
  under this section.
         (d)  The comptroller shall adopt rules to implement this
  section uniformly among the state agencies from which state grant
  funds are distributed to local entities, state criminal justice
  agencies, and campus police departments.
         (e)  The attorney general shall develop and maintain a
  database listing each local entity, state criminal justice agency,
  and campus police department for which a final judicial
  determination described by Subsection (b) has been made. The
  attorney general shall post the database on the attorney general's
  Internet website.
         Sec. 752.057.  REINSTATEMENT OF STATE GRANT FUNDS.
  (a)  Except as provided by Subsection (b), not earlier than the
  first anniversary of the date of a final judicial determination
  that a local entity, state criminal justice agency, or campus
  police department has intentionally violated Section 752.053, the
  entity, agency, or department may petition the chief justice of the
  supreme court to convene the special three-judge district court
  described by Chapter 22A to hear an action against the attorney
  general seeking a declaratory judgment regarding the entity's,
  agency's, or department's compliance with Section 752.053.
         (b)  A local entity, state criminal justice agency, or campus
  police department may petition for the reinstatement of state grant
  funds under Subsection (a) before the date described by that
  subsection if the person who was the chief executive of the entity,
  agency, or department at the time of the violation of Section
  752.053 is removed from office.
         (c)  A local entity, state criminal justice agency, or campus
  police department that brings an action described by Subsection (a)
  shall comply with a document request, including a request for
  supporting documents, from the attorney general related to the
  action.
         (d)  If the court renders a declaratory judgment declaring
  that the local entity, state criminal justice agency, or campus
  police department is in compliance with Section 752.053, state
  grant funds for the entity, agency, or department shall be
  reinstated beginning with the first day of the month following the
  month in which the declaratory judgment was rendered.
         (e)  A local entity, state criminal justice agency, or campus
  police department may not bring an action described by Subsection
  (a) more than twice in one 12-month period.
         (f)  A party is not entitled to recover any attorney's fees
  in an action described by Subsection (a).
         Sec. 752.058.  COMMUNITY OUTREACH POLICY. (a)  Each law
  enforcement agency that is subject to the requirements of this
  subchapter may adopt a written policy requiring the agency to
  perform community outreach activities to educate the public that a
  person employed by or otherwise under the direction or control of
  the agency may not inquire into the immigration status of a detained
  person if the detention occurred solely because the person:
               (1)  is a victim of or witness to a criminal offense; or
               (2)  is reporting a criminal offense.
         (b)  A policy adopted under this section must include
  outreach to victims of:
               (1)  family violence, as that term is defined by
  Section 71.004, Family Code, including those receiving services at
  family violence centers under Chapter 51, Human Resources Code; and
               (2)  sexual assault, including those receiving
  services under a sexual assault program, as those terms are defined
  by Section 420.003.
         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
  each person or entity, are 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.  Not later than January 1, 2018, each law
  enforcement agency subject to this Act shall:
               (1)  formalize in writing any unwritten, informal
  policies relating to the enforcement of immigration laws; and
               (2)  update the agency's policies to be consistent with
  this Act and to include:
                     (A)  provisions prohibiting an agency officer or
  employee from preventing agency personnel from taking immigration
  enforcement actions described by Section 752.053, Government Code,
  as added by this Act; and
                     (B)  provisions requiring each agency officer or
  employee to comply with Articles 2.251 and 2.252, Code of Criminal
  Procedure, as added by this Act, if applicable.
         SECTION 8.  Section 101.0216, Civil Practice and Remedies
  Code, as added by this Act, applies only with respect to the release
  of a person from custody on or after the effective date of this Act.
         SECTION 9.  This Act takes effect immediately 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 immediate effect, this
  Act takes effect September 1, 2017.
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