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Texas Senate
April 12, 2023
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(AUSTIN) — State and local law enforcement officials would be empowered to arrest people caught illegally crossing the border with Mexico under a new law given initial approval by the Senate on Wednesday. Bill author and Granbury Senator Brian Birdwell said that the federal government's abrogation of its duty to enforce immigration law means the state has to fill the gaps. As chair of the Senate Committee on Border Security, Birdwell held a number of interim hearings in Austin and along the border with Mexico. "Landowners, residents, business owners, and law enforcement from the border regions testified that they no longer feel safe on their land and they have witnessed first hand the devastation and destruction of the federal abdication on border security," he said. Under his bill, Texas peace officers would not be enforcing federal immigration laws, but rather a new state-level crime created by the bill: illegal entry into Texas from a foreign nation. State law enforcement can already arrest suspected illegal immigrants who are carrying drugs or other contraband that violate existing state law, but they cannot enforce federal immigration laws.

PHOTO: Granbury Senator Brian Birdwell would create a new crime for entering the state from Mexico illegally.

Granbury Senator Brian Birdwell would create a new crime for entering the state from Mexico illegally.

The new offense created by Senate Bill 2424 would be a class A misdemeanor for a first offense, but the penalty would increase with each subsequent arrest, all the way to a second degree felony. Serious criminals apprehended crossing illegally would automatically face enhanced penalties, up to a first degree felony for the most heinous offenders. Birdwell said he hopes that once word gets out that trying to enter the US illegally comes with real consequences, people won't want to test the Texas border. "You want to come into the country illegally, go through New Mexico, Arizona, or California," he said.

Federal statistics say that there were more than 1.4 million apprehensions along the border in calendar year 2022. McAllen Senator Juan "Chuy" Hinojosa said that Operation Lone Star, the state's border security program, has already clogged state courts and facilities, creating backlogs and overcrowded jails. He worries that the sheer number of apprehensions possible under the proposed law would overwhelm the struggling criminal justice system in south Texas. "I agree that the federal government is not doing enough in meeting its responsibilities along the border," he said. "But this bill cannot work. It is going to create complete chaos and a mess along the border." Birdwell said that this will be addressed in two ways. First, state resources towards border security are set to increase, with the Senate budget including $4.6 billion in funding for border security operations. Birdwell says he expects that the governor will likely use some of these funds to open a second state facility strictly for Operation Lone Star detainees. County jails, he said, wouldn't be holding people arrested under the proposed state law, unless they were already known to be dangerous criminals. Second, he said that DPS troopers will enforce the law with an eye towards overcrowding, citing testimony from DPS Executive Director Steve McCraw. "That's why Director McCraw testified to the discretion that DPS would use to ensure the enforcement is within the capacity," he said. Current practice along the border focuses mostly on immigrants judged to pose a greater threat to public safety, which are almost entirely military-aged single males. Right now, said Birdwell, state law enforcement officials hand family units, women, and children over to federal authorities for housing in federal facilities.

Because current precedent places the authority to enforce immigration laws solely with the federal government, Birdwell said this bill was written to avoid creating a conflict between the two jurisdictions. "[The bill] neither enforces nor contradicts federal immigration law," he said. "It is carefully tailored to avoid intruding on federal immigration enforcement authority while providing law enforcement with an important new tool to deter unlawful entry into Texas." The bill must face a final Senate vote before it heads to the House for consideration.

The Senate will reconvene Thursday, April 13 at 11 a.m.

Session video and all other Senate webcast recordings can be accessed from the Senate website's Audio/Video Archive.