Texas Senate Approves Creation New Immigration Enforcement Unit, Allow State Police to Arrest for Border Crossings

The Senate version of the bill approved early Wednesday 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.

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.”

Jolie McCullough reports on Texas criminal justice issues and policy. James Barragán is a politics reporter for The Texas Tribune. 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.