Texas Senate moves to create new immigration enforcement unit, allow state police to arrest for border crossings

Migrants carry supplies before crossing the Rio Grande River and into the U.S. from Mexico on Monday, May 8, 2023, in Jurez, Chihuahua. (Ivan Pierre Aguirre For The Texas Tribune, Ivan Pierre Aguirre For The Texas Tribune)

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The Texas Senate gave final approval Wednesday evening to the GOP’s priority immigration legislation, which would create a new state border police force.

House Bill 7 would also make it a state crime for migrants to enter the state anywhere but a port of entry, create a mandatory 10-year minimum sentence for human smugglers, and devote $100 million for new detention centers, courts, security and economic development projects for border communities.

It’s the most sweeping of a Republican package of bills that aims to stiffen the state’s response to a record number of crossings at Texas’ southern border. It also tests the limits of a state’s authority to enforce immigration laws, which have traditionally been the purview of the federal government.

HB 7 initially passed the Senate just after 1:30 a.m. Wednesday — nearly 16 hours after senators entered the chamber Tuesday — on a 19-12 vote along party lines. The bill received final approval on a 19-11 vote Wednesday evening, sending it back to the House, where lawmakers can accept the Senate’s changes or seek a compromise.

“House Bill 7 will enhance border security operations, provide more tools to law enforcement and prosecutors, and increase the safety of the border region in Texas,” state Sen. Brian Birdwell, R-Granbury, said when first laying out his bill after midnight.

Earlier versions of the bill’s border police unit drew intense criticism for aiming to allow civilians to serve as officers, which opponents said would have allowed unlicensed vigilantes to patrol Texas’ border.

Early Wednesday morning, Birdwell told fellow lawmakers the new Texas Border Force would have both commissioned law enforcement officers and noncommissioned employees. Only the commissioned law enforcement officers would have arrest powers or be allowed to carry guns under the bill, he said. State Sen. Phil King, R-Weatherford, who offered the amendment to clarify the duties of the two kinds of employees, said noncommissioned employees could transport people arrested by the unit and provide other logistical support.

That is a reversal of the House’s version of the bill, which had been amended to allow only licensed peace officers to be part of the new border unit. That version of the bill also limited the unit’s activity to border communities where county commissioners had given approval.

The Senate version of the bill removed the restrictions on where the unit could operate, allowing its officers to operate anywhere in the state.

In empowering its new border force, HB 7 would also create the new state crime of crossing the U.S.-Mexico border outside of a port of entry. Such an entry into Texas is already a federal crime, though federal agents process those who request asylum differently than other people caught crossing the border. State police making arrests, however, do not typically consider asylum requests.

Bill opponents have raised concerns that even more asylum-seekers will not have an opportunity to provide an affirmative defense by requesting asylum or providing another legal reason to be in the United States. They also worried that the new mandatory 10-year minimum sentence for human smuggling would ensnare mostly young, disadvantaged U.S. citizens who are lured by big payouts from drug cartels into driving migrants across the country after they cross the border.

Sen. César Blanco, D-El Paso, said Wednesday evening that he opposed the bill because it would continue a border enforcement strategy that has fallen short.

“With the creation of the border unit, I’m concerned that law-abiding border residents, who are predominantly Latino, are going to be subject to potential harassment, pretextual traffic stops by this new border force,” he said.

Although immigration laws are under federal jurisdiction, Texas leaders have found creative ways to wield power in the arena during a yearslong state crackdown on illegal immigration.

As a rise in migrants began to overwhelm Texas border communities in 2021, Gov. Greg Abbott reacted in part by sending state troopers to border counties to arrest people suspected of crossing the border illegally on state trespassing charges. Since then, thousands of migrants have been sent to Texas prisons on the low-level charge, often after being caught on rail cars or walking across privately owned land near the border.

Texas’ “catch-and-jail” criminal justice system for migrants has been entrenched in controversy from the start. Wrongful arrests and illegal detentions, as well as allegations of discriminatory and unconstitutional practices, resulted in a flurry of lawsuits and a U.S. Department of Justice investigation. Many men have languished for months inside Texas prisons converted into state jails for immigration-related crimes without attorneys or a chance to see a judge.

Under the new legislation, the trespassing workaround would no longer be needed. Police could arrest people they suspect of crossing the border illegally for that crime alone, though Birdwell repeatedly insisted Wednesday morning that only people caught at the border would be arrested.

Still, the arrests would largely act in the same manner as migrant trespassing arrests. Arrestees would largely be sent to the Texas prisons being used as state jails for immigration crimes, and Birdwell said that police would largely still arrest only single men while referring women and families to U.S. Border Patrol. State Sen. Juan “Chuy” Hinojosa, D-McAllen, said that policy “sounds like selective enforcement,” a phrase used in litigation against discriminatory practices.

Many of Abbott’s trespassing arrests have been tossed after defendants have claimed the policy to arrest only single men while referring women and families to the U.S. Border Patrol is discriminatory.

“This is not the way to try to solve this issue,” Hinojosa said.

Likely predicting legal and constitutional challenges over federal and state jurisdiction, HB 7 includes language that specifies each individual provision of the extensive bill can still stand if one piece is found invalid by the courts.

“I don’t believe we’re enforcing immigration law because our duty … after prosecution of the state crime is to process them to the immigration authorities,” Birdwell said. “But it’s certainly possible that the federal government might decide to come after Texas, and I’m certainly happy to stand and defend this.”

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