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House unveils bill giving state authority to 'repel' and return migrants crossing from Mexico

Department of Public Safety agents arrest an undocumented migrant after he was caught on private property as part of Operation Lone Star in Kinney County near Brackettville on Nov. 9, 2021.
Verónica G. Cárdenas
The Texas Tribune
Department of Public Safety agents arrest an undocumented migrant after he was caught on private property as part of Operation Lone Star in Kinney County near Brackettville on Nov. 9, 2021.

Texas House Speaker Dade Phelan threw his support behind a striking border security bill that would create a state unit of officers empowered to “repel” and arrest migrants crossing the border outside a port of entry and return migrants to Mexico if they were seen trying to illegally cross the border.

House Bill 20, the priority legislation filed by state Rep. Matt Schaefer, R-Tyler, would certainly test the boundaries of the state’s ability to enforce immigration law, which courts have historically ruled falls under federal purview.

And in a signal that the upper chamber is also willing to test the bounds of the state’s immigration enforcement authority, Lt. Gov. Dan Patrick, who oversees the Senate, announced he was backing Senate legislation that would make it a state crime for people who cross into Texas illegally. The Senate bill, proposed by Sen. Brian Birdwell, R-Granbury, would jail a person for a year or two years if the person tried to enter the country a second time. The proposal would also punish the person to life in prison if they had been previously convicted of a felony.

Currently, under federal law, a person arrested for entering the country without permission could be charged with a misdemeanor. If Border Patrol agents arrest them a second time, the person could be charged with a felony and be banned from entering the country for a certain amount of years.

Schaefer’s House bill creates a “Border Protection Unit” whose officers can “arrest, detain, and deter individuals crossing the border illegally including with the use of non-deadly force.” The bill says the officers of the unit must be U.S. citizens or permanent legal residents, or have law enforcement experience. The bill also proposes to give officers in this unit immunity “from criminal and civil liability for any actions taken that are authorized” by the proposed law. The bill also says the unit chief could employ civilians who have not been convicted of a felony "to participate in unit operations and functions, but such persons may not have arresting authority unless 6 trained and specifically authorized by the governor."

Roberto Lopez, senior advocacy manager for the beyond borders program at the Texas Civil Rights Project, called Schaefer’s bill the “most dangerous proposal we have ever seen on border issues.”

"A new military force under Gov. Greg Abbott, potentially staffed by vigilantes deputized as law enforcement authorities, will provide no protection to border communities whatsoever,” Lopez said. "Trying to solve what is fundamentally a humanitarian crisis with a full frontal military response shows a reckless disregard for the safety of the people in our state and a fundamental misunderstanding of the root causes of the issues at our border.”

Similar to the Senate bill, Schaefer’s legislation would also make trespassing on private property in Texas by migrants entering from Mexico a felony.

Schaefer’s legislation also states that if the federal government ever declared another national public health emergency over COVID-19, or has in place any COVID-19 vaccination requirements for any U.S. citizens including government and health care workers, then the state would be allowed to remove migrants “as rapidly as possible.”

Schaefer did not immediately respond to a request for comment.

Phelan's office did not respond to questions sent about the legislation but said in a statement sent Friday evening, “Addressing our state’s border and humanitarian crisis is a must-pass issue for the Texas House this year.”

César Cuauhtémoc García Hernández, an immigration attorney and law professor at Ohio State University, said any attempt by Texas to enforce immigration law would face lawsuits.

"The proposal would certainly put officers of this new Texas Border Protection Unit in direct conflict with Border Patrol agents and ICE [Immigration and Customs Enforcement] officers, raising serious constitutional question," he said.

He also said if the proposal would be adopted into law it would send a strong message that Texas is not interested in helping asylum-seekers.

“Texas is closed for business when it comes to welcoming people who are fleeing for their lives in the face of political repression,” he said.

The proposal comes as Texas has spent more than $4 billion to slow the number of migrants crossing into the state. In the past two years, state lawmakers have sent thousands of Department of Public Safety troopers and National Guard service members to the border in an attempt to deter migrants from entering into the state. The state has also devoted hundreds of millions of dollars to erecting a state-funded border wall and prosecuting some migrants who have crossed the border in state court for offenses like trespassing.

In the fiscal year 2022, which ended in September, Border Patrol agents arrested migrants 2.4 million times — a record breaking number. Many people in Latin America and the Caribbean are seeking asylum in the United States because they are fleeing an oppressive government and economic disaster that has led to few jobs.

Chelsie Kramer, the Texas organizer for the American Immigration Council, a Washington, D.C., group that advocates for immigrants, said state laws that are meant only to deter migrants won’t provide long term solutions. She added that during a time in which employers are seeking workers, Texans should be looking to immigrants to help fill those jobs.

“No matter how hard leadership may want to stop immigration it’s not going to stop,” she said. “Instead, we should be looking for ways to use the population coming to the U.S. to bolster our economy.”

She noted that the ambitious efforts of Abbott’s border mission dubbed Operation Lone Star, in combination with the federal government’s own enforcement, hasn’t slowed the number of people attempting to enter the country.

She also added that Schaefer’s proposal does not take into account how Texas would work with Mexico which would have to agree to accept people being returned by state officials.

Currently, under federal immigration policy, if a person is not a Mexican citizen, Mexico has to negotiate with the U.S. to determine how many and if the country is willing to accept non-Mexican citizens.

Schaefer’s proposal is the latest instance in which Texas is challenging the federal government’s purview of being the sole enforcer of immigration law. Since 2021, Texas has started building a state-funded border wall, sent state police officers to patrol the border, and approved the movement of migrants caught in the interior of the state back to the ports of entry so they could be processed by immigration authorities.

Schaefer, a member of the right-wing Texas House Freedom Caucus, is one of the biggest immigration hawks in the Legislature. In 2017, he introduced an amendment into a bill aimed at banning so-called “sanctuary cities” in the state that allowed police to ask about immigration status during a police interaction. After a bitter debate that left relationships in the Legislature fractured, the law was passed and went into effect after it was signed by Gov. Greg Abbott.

The law was derided as the “Show me your papers” law by immigrant rights supporters who said it would erode trust between police and communities where unauthorized immigrants had lived, most times peacefully, for decades.

When Arizona passed a state law in 2010 that allowed police officers to arrest people if they couldn’t provide documentation showing legal presence in the country, the Obama administration sued the state, claiming immigration laws could be enforced only by the federal government. In 2012, the U.S. Supreme Court ruled in a 5-3 decision that local police didn’t have the authority to arrest someone solely based on their immigration status.

During a state Senate committee meeting on border security last year, Texas First Assistant Attorney General Brent Webster told the senators that Paxton’s office does not agree with the ruling and would “welcome laws” that would spark a court challenge “because the makeup of the Supreme Court has changed.”

In his lone term, Trump appointed three Supreme Court justices — the most by any president since Ronald Reagan, who appointed four during his two terms.

“We ask for you guys to consider laws that might enable us to go and challenge that [Supreme Court] ruling again,” Webster added.

James Barragán contributed to this report.

Uriel J. García is an immigration reporter based in El Paso. Before joining the Tribune, he worked at the Arizona Republic where he covered police violence and immigration enforcement.