Will Texas Illegal Immigration Law Take Effect this Week?

S.B. 4 Implementation Temporarily Paused Pending U.S. Supreme Court Review

For months, TMCEC has been monitoring S.B. 4, the “Texas Illegal Immigration Law.” The bill, scheduled to go into effect on March 5th, is embroiled in federal litigation. While a federal trial court issued a 114-page decision stopping the bill from taking effect, two days later a federal court of appeals “reversed course” saying that it would allow the bill to go into effect while the case against it proceeded in the courts. Now all eyes are on the U.S. Supreme Court, which issued a temporary administrative stay that expires this week.

What Municipal Courts Need to Know about S.B. 4

On December 18, 2023, during the fourth special session, the Texas Legislature passed S.B. 4 with a March 5, 2024 effective date. Among other things, S.B. 4 adds Chapter 51 to the Penal Code, which creates state offenses related to illegal entry into Texas ranging in punishment from Class B misdemeanor to second degree felony.

Importantly, for municipal judges who perform magistrate duties, S.B. 4 creates Chapter 5B of the Code of Criminal Procedure. Article 5B.002(a) gives magistrates the discretion, following a probable cause determination, to order the discharge of a person arrested for the newly created offenses in Chapter 51 of the Penal Code (Sections 51.02 and 51.03) and issue a written order requiring the person to return to the foreign nation from which he or she entered or attempted to enter the United States. The arrestee:

• Must agree to the order;
• Must not have been previously convicted of an offense under Chapter 51 or discharged under Article 5B.002; and
• Must not be charged with another Class A misdemeanor or higher offense.

If a magistrate chooses to issue an order under Article 5B.002, the order must include (1) the manner of transportation of the person to a port of entry and (2) the law enforcement officer or state agency responsible for monitoring compliance with the order. Magistrate orders under Article 5B.002(a) must be filed with the county clerk of the county where the person was arrested.

Furthermore, prior to the issuance of an order under Article 5B.002, the arresting law enforcement agency must collect all available identifying information on the arrestee, including taking fingerprints, and cross-reference it against all relevant criminal databases.

Federal Court Activity Timeline

• February 29, 2024: The U.S. District Court for the Western District of Texas granted a preliminary injunction enjoining the enforcement of S.B. 4 because it violates the Supremacy Clause of the U.S. Constitution. Article VI, Clause 2 of the U.S. Constitution, the Supremacy Clause, establishes that the U.S. Constitution and any federal laws made pursuant to it constitute the supreme law of the land and thus take precedence over any conflicting state laws.
• March 2, 2024: The Fifth Circuit Court of Appeals ordered a temporary administrative stay overturning the District Court’s injunction. The Fifth Circuit, however, placed a seven-day stay on its administrative stay to give the federal government an opportunity to appeal this decision to the U.S. Supreme Court. The Fifth Circuit also stated that it will hear oral arguments on the constitutionality of S.B. 4 as soon as possible.
• March 4, 2024: The U.S. Supreme Court ordered an administrative stay on the Fifth Circuit’s order until 4:00 p.m. (CDT) on March 13, 2024. The Supreme Court further ordered Texas to submit a response by March 11.

Stay Tuned (and Save the Date)

If the U.S. Supreme Court does not intervene, S.B. 4 could take effect this Wednesday, March 13th. TMCEC will continue to monitor this fluid situation and keep constituents apprised of updates. Mark your calendar, S.B. 4 and recent changes regarding the confidentiality of court work product information will be the focus of a special TMCEC Morning Coffee on Thursday, March 21st at 10:00 a.m. Additional information will be shared in the weeks and months ahead.