By:AAPerry, et al. S.B.ANo.

A4
(Spiller, Hefner, Bell of Kaufman, Hunter, Geren, et al.)

A BILL TO BE ENTITLED

1 AN ACT

2 relating to prohibitions on the illegal entry into or illegal

3 presence in this state by a person who is an alien, the enforcement

4 of those prohibitions and certain related orders, including

5 immunity from liability and indemnification for enforcement

6 actions, and authorizing or requiring under certain circumstances

7 the removal of persons who violate those prohibitions; creating

8 criminal offenses.

9 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

10 SECTIONA1.AATitle 1, Code of Criminal Procedure, is amended

11 by adding Chapter 5B to read as follows:

12 CHAPTER 5B. PROCEDURES FOR CERTAIN OFFENSES INVOLVING ILLEGAL

13 ENTRY INTO THIS STATE

14 Art.A5B.001.AAENFORCEMENT PROHIBITED IN CERTAIN LOCATIONS.

15 Notwithstanding any other law, a peace officer may not arrest or

16 detain a person for purposes of enforcing a provision of Chapter 51,

17 Penal Code, if the person is on the premises or grounds of:

18 (1)AAa public or private primary or secondary school

19 for educational purposes;

20 (2)AAa church, synagogue, or other established place of

21 religious worship;

22 (3)AAa health care facility, as defined by Section

23 161.471, Health and Safety Code, including a facility a state

24 agency maintains or operates to provide health care, or the office

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1 of a health care provider, as defined by Section 161.471, Health and

2 Safety Code, provided that the person is on the premises or grounds

3 of the facility or office for the purpose of receiving medical

4 treatment; or

5 (4)AAa SAFE-ready facility, as defined by Section

6 323.001, Health and Safety Code, or another facility that provides

7 forensic medical examinations to sexual assault survivors in

8 accordance with Chapter 323, Health and Safety Code, provided that

9 the person is on the premises or grounds of the facility for

10 purposes of obtaining a forensic medical examination and treatment.

11 Art.A5B.002.AAORDER TO RETURN TO FOREIGN NATION. (a) A

12 magistrate during a person ’s appearance under Article 14.06 or

13 15.17 may, after making a determination that probable cause exists

14 for arrest for an offense under Section 51.02 or 51.03, Penal Code,

15 order the person released from custody and issue a written order in

16 accordance with Subsection (c).

17 (b)AAThe judge in a person ’s case at any time after the

18 person ’s appearance before a magistrate under Article 14.06 or

19 15.17 may, in lieu of continuing the prosecution of or entering an

20 adjudication regarding an offense under Section 51.02 or 51.03,

21 Penal Code, dismiss the charge pending against the person and issue

22 a written order in accordance with Subsection (c).

23 (c)AAA written order authorized by Subsection (a) or (b) must

24 discharge the person and require the person to return to the foreign

25 nation from which the person entered or attempted to enter, and may

26 be issued only if:

27 (1)AAthe person agrees to the order;

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1 (2)AAthe person has not previously been convicted of an

2 offense under Chapter 51, Penal Code, or previously obtained a

3 discharge under an order described by Subsection (a) or (b);

4 (3)AAthe person is not charged with another offense

5 that is punishable as a Class A misdemeanor or any higher category

6 of offense; and

7 (4)AAbefore the issuance of the order, the arresting

8 law enforcement agency:

9 (A)AAcollects all available identifying

10 information of the person, which must include taking fingerprints

11 from the person and using other applicable photographic and

12 biometric measures to identify the person; and

13 (B)AAcross-references the collected information

14 with:

15 (i)AAall relevant local, state, and federal

16 criminal databases; and

17 (ii)AAfederal lists or classifications used

18 to identify a person as a threat or potential threat to national

19 security.

20 (d)AAOn a person ’s conviction of an offense under Chapter 51,

21 Penal Code, the judge shall enter in the judgment in the case an

22 order requiring the person to return to the foreign nation from

23 which the person entered or attempted to enter. An order issued

24 under this subsection takes effect on completion of the term of

25 confinement or imprisonment imposed by the judgment.

26 (e)AAAn order issued under this article must include:

27 (1)AAthe manner of transportation of the person to a

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1 port of entry, as defined by Section 51.01, Penal Code; and

2 (2)AAthe law enforcement officer or state agency

3 responsible for monitoring compliance with the order.

4 (f)AAAn order issued under this article must be filed:

5 (1)AAwith the county clerk of the county in which the

6 person was arrested, for an order described by Subsection (a); or

7 (2)AAwith the clerk of the court exercising

8 jurisdiction in the case, for an order described by Subsection (b)

9 or (d).

10 (g)AANot later than the seventh day after the date an order is

11 issued under this article, the law enforcement officer or state

12 agency required to monitor compliance with the order shall report

13 the issuance of the order to the Department of Public Safety for

14 inclusion in the computerized criminal history system under Chapter

15 66.

16 Art.A5B.003.AAABATEMENT OF PROSECUTION ON BASIS OF

17 IMMIGRATION STATUS DETERMINATION PROHIBITED. A court may not abate

18 the prosecution of an offense under Chapter 51, Penal Code, on the

19 basis that a federal determination regarding the immigration status

20 of the defendant is pending or will be initiated.

21 SECTIONA2.AATitle 10, Penal Code, is amended by adding

22 Chapter 51 to read as follows:

23 CHAPTER 51. ILLEGAL ENTRY INTO THIS STATE

24 Sec.A51.01.AADEFINITIONS. In this chapter:

25 (1)AA"Alien" has the meaning assigned by 8 U.S.C.

26 Section 1101, as that provision existed on January 1, 2023.

27 (2)AA"Port of entry" means a port of entry in the United

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1 States as designated by 19 C.F.R. Part 101.

2 Sec.A51.02.AAILLEGAL ENTRY FROM FOREIGN NATION. (a) A

3 person who is an alien commits an offense if the person enters or

4 attempts to enter this state directly from a foreign nation at any

5 location other than a lawful port of entry.

6 (b)AAAn offense under this section is a Class B misdemeanor,

7 except that the offense is a state jail felony if it is shown on the

8 trial of the offense that the defendant has been previously

9 convicted of an offense under this section.

10 (c)AAIt is an affirmative defense to prosecution under this

11 section that:

12 (1)AAthe federal government has granted the defendant:

13 (A)AAlawful presence in the United States; or

14 (B)AAasylum under 8 U.S.C. Section 1158;

15 (2)AAthe defendant ’s conduct does not constitute a

16 violation of 8 U.S.C. Section 1325(a); or

17 (3)AAthe defendant was approved for benefits under the

18 federal Deferred Action for Childhood Arrivals program between June

19 15, 2012, and July 16, 2021.

20 (d)AAThe following federal programs do not provide an

21 affirmative defense for purposes of Subsection (c)(1):

22 (1)AAthe Deferred Action for Parents of Americans and

23 Lawful Permanent Residents program; and

24 (2)AAany program not enacted by the United States

25 Congress that is a successor to or materially similar to the program

26 described by Subsection (c)(3) or Subdivision (1).

27 Sec.A51.03.AAILLEGAL REENTRY BY CERTAIN ALIENS. (a) A

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1 person who is an alien commits an offense if the person enters,

2 attempts to enter, or is at any time found in this state after the

3 person:

4 (1)AAhas been denied admission to or excluded,

5 deported, or removed from the United States; or

6 (2)AAhas departed from the United States while an order

7 of exclusion, deportation, or removal is outstanding.

8 (b)AAAn offense under this section is a Class A misdemeanor,

9 except that the offense is:

10 (1)AAa felony of the third degree if:

11 (A)AAthe defendant ’s removal was subsequent to a

12 conviction for commission of two or more misdemeanors involving

13 drugs, crimes against a person, or both;

14 (B)AAthe defendant was excluded pursuant to 8

15 U.S.C. Section 1225(c) because the defendant was excludable under 8

16 U.S.C. Section 1182(a)(3)(B);

17 (C)AAthe defendant was removed pursuant to the

18 provisions of 8 U.S.C. Chapter 12, Subchapter V; or

19 (D)AAthe defendant was removed pursuant to 8

20 U.S.C. Section 1231(a)(4)(B); or

21 (2)AAa felony of the second degree if the defendant was

22 removed subsequent to a conviction for the commission of a felony.

23 (c)AAFor purposes of this section, "removal" includes an

24 order issued under Article 5B.002, Code of Criminal Procedure, or

25 any other agreement in which an alien stipulates to removal

26 pursuant to a criminal proceeding under either federal or state

27 law.

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1 Sec.A51.04.AAREFUSAL TO COMPLY WITH ORDER TO RETURN TO

2 FOREIGN NATION. (a) A person who is an alien commits an offense if:

3 (1)AAthe person has been charged with or convicted of an

4 offense under this chapter;

5 (2)AAa magistrate or judge, as applicable, has issued

6 an order under Article 5B.002, Code of Criminal Procedure, for the

7 person to return to the foreign nation from which the person entered

8 or attempted to enter; and

9 (3)AAthe person refuses to comply with the order.

10 (b)AAAn offense under this section is a felony of the second

11 degree.

12 SECTIONA3.AATitle 5, Civil Practice and Remedies Code, is

13 amended by adding Chapter 117 to read as follows:

14 CHAPTER 117. LIABILITY FOR AND INDEMNIFICATION OF CERTAIN CLAIMS

15 RELATING TO ENFORCEMENT OF CERTAIN CRIMINAL OFFENSES INVOLVING

16 ILLEGAL ENTRY INTO THIS STATE

17 Sec.A117.001.AADEFINITION. In this chapter, "damages"

18 includes any and all damages, fines, fees, penalties, court costs,

19 attorney ’s fees, or other assessments.

20 Sec.A117.002.AACIVIL IMMUNITY FOR AND INDEMNIFICATION OF

21 LOCAL GOVERNMENT OFFICIALS, EMPLOYEES, AND CONTRACTORS. (a)

22 Except as provided by Subsection (d), a local government official,

23 employee, or contractor is immune from liability for damages

24 arising from a cause of action under state law resulting from an

25 action taken by the official, employee, or contractor to enforce

26 Chapter 51, Penal Code, or an order issued under Article 5B.002,

27 Code of Criminal Procedure, during the course and scope of the

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1 official ’s, employee ’s, or contractor ’s office, employment, or

2 contractual performance for or service on behalf of the local

3 government.

4 (b)AASubject to Subsection (c) and except as provided by

5 Subsection (d), a local government shall indemnify an official,

6 employee, or contractor of the local government for damages arising

7 from a cause of action under federal law resulting from an action

8 taken by the official, employee, or contractor to enforce Chapter

9 51, Penal Code, or an order issued under Article 5B.002, Code of

10 Criminal Procedure, during the course and scope of the official ’s,

11 employee ’s, or contractor ’s office, employment, or contractual

12 performance for or service on behalf of the local government.

13 (c)AAIndemnification payments made under Subsection (b) by a

14 local government may not exceed:

15 (1)AA$100,000 to any one person or $300,000 for any

16 single occurrence in the case of personal injury or death; or

17 (2)AA$10,000 for a single occurrence of property

18 damage.

19 (d)AASubsections (a) and (b) do not apply if the court or jury

20 determines that the local government official, employee, or

21 contractor acted in bad faith, with conscious indifference, or with

22 recklessness.

23 (e)AAA local government shall indemnify an official,

24 employee, or contractor of the local government for reasonable

25 attorney ’s fees incurred in defense of a criminal prosecution

26 against the official, employee, or contractor for an action taken

27 by the official, employee, or contractor to enforce Chapter 51,

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1 Penal Code, or an order issued under Article 5B.002, Code of

2 Criminal Procedure, during the course and scope of the official ’s,

3 employee ’s, or contractor ’s office, employment, or contractual

4 performance for or service on behalf of the local government.

5 (f)AAThis section may not be construed to waive any statutory

6 limits on damages under state law.

7 Sec.A117.003.AACIVIL IMMUNITY FOR AND INDEMNIFICATION OF

8 STATE OFFICIALS, EMPLOYEES, AND CONTRACTORS. (a) Except as

9 provided by Subsection (d), an elected or appointed state official

10 or a state employee or contractor is immune from liability for

11 damages arising from a cause of action under state law resulting

12 from an action taken by the official, employee, or contractor to

13 enforce Chapter 51, Penal Code, or an order issued under Article

14 5B.002, Code of Criminal Procedure, during the course and scope of

15 the official ’s, employee ’s, or contractor ’s office, employment, or

16 contractual performance for or service on behalf of the state.

17 (b)AAExcept as provided by Subsection (d), the state shall

18 indemnify an elected or appointed state official or a state

19 employee or contractor for damages arising from a cause of action

20 under federal law resulting from an action taken by the official,

21 employee, or contractor to enforce Chapter 51, Penal Code, or an

22 order issued under Article 5B.002, Code of Criminal Procedure,

23 during the course and scope of the official ’s, employee ’s, or

24 contractor ’s office, employment, or contractual performance for or

25 service on behalf of the state.

26 (c)AANotwithstanding any other law, an indemnification

27 payment made under Subsection (b) is not subject to an

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1 indemnification limit under the laws of this state.

2 (d)AASubsections (a) and (b) do not apply if the court or jury

3 determines that the state official, employee, or contractor acted

4 in bad faith, with conscious indifference, or with recklessness.

5 (e)AAThe state shall indemnify a state official, employee, or

6 contractor for reasonable attorney ’s fees incurred in defense of a

7 criminal prosecution against the official, employee, or contractor

8 for an action taken by the official, employee, or contractor to

9 enforce Chapter 51, Penal Code, or an order issued under Article

10 5B.002, Code of Criminal Procedure, during the course and scope of

11 the official ’s, employee ’s, or contractor ’s office, employment, or

12 contractual performance for or service on behalf of the state.

13 (f)AAA state official, employee, or contractor who may be

14 entitled to indemnification under Subsection (b) is entitled to

15 representation by the attorney general, subject to Chapter 104, in

16 an action in connection with which the official, employee, or

17 contractor may be entitled to that indemnification.

18 (g)AAThis section may not be construed to waive any statutory

19 limits on damages under state law.

20 Sec.A117.004.AAAPPEAL TO SUPREME COURT. For a civil action

21 brought against a person who may be entitled to immunity or

22 indemnification under Section 117.002 or 117.003, an appeal must be

23 taken directly to the supreme court.

24 Sec.A117.005.AAOTHER LAWS NOT AFFECTED. This chapter does

25 not affect a defense, immunity, or jurisdictional bar available to

26 the state or a local government or an official, employee, or

27 contractor of the state or a local government.

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1 SECTIONA4.AASubchapter B, Chapter 42A, Code of Criminal

2 Procedure, is amended by adding Article 42A.059 to read as follows:

3 Art.A42A.059.AAPLACEMENT ON COMMUNITY SUPERVISION

4 PROHIBITED FOR CERTAIN OFFENSES INVOLVING ILLEGAL ENTRY INTO THIS

5 STATE. Notwithstanding any other provision of this chapter, a

6 defendant is not eligible for community supervision, including

7 deferred adjudication community supervision, under this chapter if

8 the defendant is charged with or convicted of an offense under

9 Chapter 51, Penal Code.

10 SECTIONA5.AAArticle 66.102, Code of Criminal Procedure, is

11 amended by adding Subsection (i) to read as follows:

12 (i)AAIn addition to the information described by this

13 article, information in the computerized criminal history system

14 must include any order issued under Article 5B.002.

15 SECTIONA6.AASection 508.145(a), Government Code, is amended

16 to read as follows:

17 (a)AAAn inmate is not eligible for release on parole if the

18 inmate is under sentence of death, serving a sentence of life

19 imprisonment without parole, or serving a sentence for any of the

20 following offenses under the Penal Code:

21 (1)AASection 20A.03, if the offense is based partly or

22 wholly on conduct constituting an offense under Section

23 20A.02(a)(5), (6), (7), or (8);

24 (2)AASection 21.02; [or]

25 (3)AASection 22.021, if the offense is punishable under

26 Subsection (f) of that section; or

27 (4)AASection 51.03 or 51.04.

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1 SECTIONA7.AASection 508.149, Government Code, is amended by

2 adding Subsection (a-1) to read as follows:

3 (a-1)AAAn inmate serving a sentence for an offense under

4 Section 51.03 or 51.04, Penal Code, may not be released to mandatory

5 supervision.

6 SECTIONA8.AAIt is the intent of the legislature that every

7 provision, section, subsection, sentence, clause, phrase, or word

8 in this Act, and every application of the provisions in this Act to

9 every person, group of persons, or circumstances, is severable from

10 each other. If any application of any provision in this Act to any

11 person, group of persons, or circumstances is found by a court to be

12 invalid for any reason, the remaining applications of that

13 provision to all other persons and circumstances shall be severed

14 and may not be affected.

15 SECTIONA9.AAThis Act takes effect on the 91st day after the

16 last day of the legislative session.

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