Enforcing Texas’ New Immigration Law May Be Challenging, Even for Authorities That Support It

S.B. 4 remains temporarily blocked while a federal appeals court weighs a challenge from Texas to a lower court’s ruling that struck the law down. The lower court found that the law “threatens the fundamental notion that the United States must regulate immigration with one voice.”

The stoppage and conflicting responses from law enforcement in the wake of the law’s brief effect Tuesday has done little to reduce concerns that the bill will enable racial profiling and discrimination. No one has been arrested under the law, lawyers representing Texas told a federal appeals court panel Wednesday during a hearing.

The Department of Public Safety, whose troopers patrol the border under Operation Lone Star, may be best equipped to enforce the law. However, DPS has said little beyond court filings about how it will do that. Spokespersons for the agency did not respond to inquiries this week sent by The Texas Tribune via email and phone.

The Biden administration and immigrant rights organizations who sued Texas to stop the law argue that S.B. 4 is unconstitutional because it interferes with federal immigration laws. Proponents of the law argue it is imperative to do what the federal government refuses to do: enforce immigration law.

The law seeks to make illegally crossing the border a Class B misdemeanor, carrying a punishment of up to six months in jail. Repeat offenders could face a second-degree felony with a punishment of two to 20 years in prison.

The law also requires state judges to order migrants returned to Mexico if they are convicted; local law enforcement would be responsible for transporting migrants to the border. A judge could drop the charges if a migrant agrees to return to Mexico voluntarily.

Rep. David Spiller, a Republican from Jacksboro who co-authored the law, said he expects “95%” of the law’s enforcement would be within 50 miles of the border. He said he would be “shocked” if major metropolitan police forces like those in Dallas, Houston and San Antonio had more than “just a few” cases.

“They shouldn’t be going out interrogating people otherwise saying, hey, you look like a migrant — when did you cross and where did you cross?” Spiller told The Texas Tribune on Wednesday. “Those conversations should not be happening.”

Spiller said he understood some sheriffs along the border may be limited in resources, but noted that the law permits an independent magistrate to determine the manner and means in which a person is sent back to Mexico if they voluntarily agree to return.

But Mexico does not plan to cooperate with Texas.

A Mexican federal official said this week the country will not accept repatriations from Texas and will continue to work between federal governments.

“It’s that there’s no precedent,” said Rodolfo Rubio Salas, an immigration professor at El Colegio de Chihuahua in Ciudad Juárez. “There’s no precedent between Mexico-US relations, nor at the international level, that a country negotiates with a state or entity of another country to carry out these processes.”

Already, the prospect of S.B. 4 going into effect has prompted a variety of responses from law enforcement entities.

Hugging the border about 130 miles west of San Antonio, Kinney County was prepared to charge people under the new law, but “it is unlikely observers will see an overnight change,” Sheriff Brad Coe said in a social media post during the short time the law was in effect. He assured officers and deputies would “need probable cause.”

In Fort Worth, police officials said that while they “always follow the law, the primary responsibility for immigration enforcement and border protection should be left to our federal and state partners.”

Texas House Speaker Dade Phelan chastised the department and called their message posted in Spanish and English “unbelievable.”

“Compliance with state law is not optional; it is mandatory,” Phelan wrote on social media. “Any local law enforcement agency that refuses to enforce Senate Bill 4 is abandoning their sworn duty to uphold the rule of law.”

It is not clear that officers and deputies across the state will take orders from elected officials since they have their own department’s chain of commands, lawyers and general orders to guide their service.

“We intend to advise our members to consult with their local legal counsel for guidance,” said Albert Garcia, president of the Texas Police Chiefs Association, a group that aims to advance the development of police executives. “Since Senate Bill 4 grants discretion, it is imperative for each jurisdiction to assess the best course of action based on their unique circumstances.”

Some police entities operating hundreds of miles from the border, like sheriffs in Tarrant and Montgomery counties, have indicated they will enforce S.B. 4. The sheriffs of Tarrant, Collin and Smith counties met with Abbott Wednesday in the Capitol and presented him with a letter signed by 139 sheriffs expressing support for the law and arguing “our unsecured border is directly responsible for numerous criminal victimizations of citizens and non-citizens as well as numerous human rights violations.” Many of those sheriffs were from counties far from the border, where it’s less clear how they can make arrests under the law.

Skylor Hearn, executive director of the Sheriffs’ Association of Texas, said it would be “impossible” for local police to enforce S.B. 4’s illegal entry charge in counties away from the border. The more severe charge for repeat offenders, illegal reentry, could come into play in non-border counties, Hearn said, though he insisted it would take more than a simple traffic stop.

“There’s no way to get probable cause on the side of the road,” Hearn said. “The only way the second offense will ever be filed is someone who was arrested for something else — DWI, burglary, fighting in public, whatever. They go to jail, they’re fingerprinted, and that biometric record makes it up to the federal government and then comes back down. … That’s the only way you can make that case.”

The law may potentially give those agencies farther away from the physical border a law with “more teeth” that could be used strategically, for instance in a situation where a specific suspect not yet arrested is identified as an undocumented person, said Tyler Owen, of the Texas Municipal Police Association, an organization that provides legal services to members who work in all sorts of law enforcement.

Just as tricky as navigating the new law’s enforcement will be ensuring that crime victims who may be undocumented still feel comfortable reporting those crimes — not avoiding police out of fear, Owen said.

“It’s gonna be a balancing act and it’s gonna be something that we’re going to have to tread through together,” Owen said. “Yes we’re cops. But before they’re putting that badge on, they’re human beings.”

Alejandro Serrano is a general assignment reporter for The Texas Tribune. Jasper Scherer contributed reporting. This story is published courtesy of the Texas Tribune, a nonpartisan, nonprofit media organization that informs Texans — and engages with them — about public policy, politics, government, and statewide issues.