In four short months, Texas Gov. Abbott has stripped Travis County of $1.5 million in funding for failing to honor optional ICE detainers, threatened to throw those non-compliant—yet law abiding—officials out of office and cheered on the progress of Senate Bill 4. The legislation in its current form would allow police officers to question individuals on their immigration status without making an arrest.
In the span of a night that included more than 16 hours of debate, the Texas House of Representatives recently transformed the bill from its more docile form that allowed citizenship inquiries upon arrest to what some are calling a "show me your papers" bill, rivaling Arizona's Senate Bill 1070, an immigration bill that was somewhat neutralized by U.S. Supreme Court judges.
Is Texas headed toward the same path? Here's how the state and country have handled major immigration issues in recent years:
Comparisons to Arizona's immigration law
While not exactly the same, Texas' proposed immigration law adopts the spirit of Arizona's legislation, according to Elissa Steglich, a clinical professor at The University of Texas School of Law's immigration clinic.
"I think one of the largest similarities is the spirit of the legislation, which is really to marginalize and stoke fear in the immigrant community," she said.
During the Senate State Affairs Committee hearing, more than 500 individuals testified overwhelmingly against the bill, citing this concern. Many speakers were immigrants, insisting they were fearful of what implications the bill might have.
Steglich said the two bills' messaging are very similar—both allow individuals who are stopped for something as minor as a broken tail light to be taken into custody, and both authorize communication with ICE and mandate compliance with any ICE detainer request oral or written.
"It is really telling every law enforcement community that you have to go by what ICE says," she said.
However, SB4 isn't a complete carbon copy. Arizona's legislation deputized and authorized local law enforcement to make arrests for violations of immigration law, and Texas' proposed legislation does not include such a provision.
As is, the Texas version of the bill would allow an officer to stop an individual for a speeding ticket, for example, and without arresting the individual, the officer could question the person about his or her citizenship status. If the officer has reasonable belief that the person did not legally enter the country, he or she can contact ICE and hold the individual until ICE arrives to detain the person.
While the officer cannot arrest the person purely for suspicion of citizenship status, law enforcement can contact ICE sooner in the process than what is currently permitted.
Potential constitutional challenges
Steglich said states rarely try to do what Texas is currently attempting with Senate Bill 4. In fact, she said, the trend has gone the exact opposite throughout the country.
She said both California and Rhode Island have a statewide policy underlining the fact that detainer requests are voluntary. In those states, agencies are prohibited from complying with those requests because of constitutional concerns about insufficient evidence.
Should someone be detained with insufficient evidence, Steglich said ICE would not be the one held liable. Rather, the responsibility will fall on the shoulders of county or local law enforcement.
Steglich posed a scenario to explain the constitutional conundrum: an individual encounters an officer, states he or she is a U.S. citizen but doesn't have a passport or other identification documents to prove their legal status at the moment. The individual tells this to both the local law enforcement agency and to ICE. The individual is still arrested.
If that person ends up being a U.S. citizen, "which has happened ... the county is going to be on the hook," Steglich said.
"If the county wants to listen to the person and decides that the person is a U.S. citizen and doesn't want to honor the detainer, then any private citizen can say they aren't following SB4 and they are going to be subject to penalties, both civil and criminal," she said.
Under the current version of SB4, agencies that do not comply with the detainer requests would be slapped with civil penalties of $1,000 for the first offense and up to $25,500 for subsequent offenses. In addition, sheriffs, constables and chiefs could be charged with Class A misdemeanors for failing to comply with the detainers.
Challenges to the bill could arise elsewhere. Steglich said the same argument made against the Arizona law could apply here as well.
The U.S. Constitution states that local law enforcement cannot act as immigration agents because the federal government exercises such authority in that area.
Steglich said there may be room for a challenge where the Legislature is stepping in and mandating every local officer must follow ICE policy.
"It is a question of whether it will be constitutionally allowed to change that from a voluntary request to a mandatory one as a state," she said.
Local opposition to Senate Bill 4
In Travis County, Sheriff Sally Hernandez has turned a county that was once one of ICE's most active collaborators on detainer requests into an area that is getting national acclaim for doing the exact opposite.
In a U.S. Department of Homeland Security report that details detainer requests refused by individual jurisdictions, Travis County denied 140 detainer requests between Jan. 28 and Feb. 3.
In
the most recent report, dated Feb. 11-17, Travis County Sheriff's Office is listed as rejecting detainers on 10 individuals charged with assault, drug posession and domestic violence. Since that report was issued, ICE has temporarily discontinued issuing future reports.
Hernandez said previously she would honor detainer requests for individuals who had committed crimes of a certain degree—including murder and aggravated sexual assault.
Following the Texas House debate on Senate Bill 4, she congratulated Democrats who had debated against the bill.
"[Democrats] presented factual, common sense truths rather than fear-based, misleading rhetoric," she said in a statement.
