Texas Senate moves border bill that allows state police to arrest migrants at U.S.-Mexico border

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The Senate advanced two immigration-related bills on Thursday evening, one of which would allow state police to arrest migrants who cross the southern border.

Senate Bill 11, sponsored by state Sen. Brian Birdwell, R-Granbury, would create a new state crime for illegally entering Texas from Mexico and authorize state police to arrest violators. A first-time offender could be convicted of a misdemeanor, but the penalty would jump to a felony if the person has a criminal record and has repeatedly entered the country illegally.

The Senate gave initial approval to SB 11 with a 19-12 vote. The bill needs a final vote in the Senate before it goes to the House.

Senate Bill 4, sponsored by state Sen. Pete Flores, R-Pleasanton, would increase the minimum sentence from two years to 10 years for smuggling immigrants or operating a stash house. SB 4 passed with bipartisan support in a 29-2 vote.

Earlier this month, Gov. Greg Abbott called for a third special legislative session since the regular session ended earlier this year, asking lawmakers to pass proposals on school vouchers and immigration enforcement. Abbott had asked lawmakers to approve immigration enforcement proposals during the regular legislative session and the previous special session, but lawmakers couldn’t come to an agreement and adjourned without passing an immigration enforcement bill.

Abbott has been critical of the Biden administration for years, blaming the president for the record-breaking number of Border Patrol apprehensions at the southern border.

Sen. Juan "Chuy" Hinojosa, D-McAllen, raised concerns about the ability of counties to comply with SB 11. He argued the number of people who would be arrested would overwhelm local jails and require significant funding for the defense of migrants who are arrested.

If the legislation passes, Sen. César Blanco estimated that SB 11 would cost El Paso taxpayers — his constituents — an additional $60,000 per day.

“My concern is the State of Texas may add a layer on top of what we are dealing with in terms of both border security and a humanitarian crisis that has developed and continues to affect our communities,” the Democrat said on the Senate floor.

Birdwell, who introduced the bill, said funding allocated during the regular session, as part of Abbott’s border security initiative Operation Lone Star, would cover many of the costs associated with the bill.

According to the latest published federal immigration data, federal agents had 2.2 million encounters with migrants in fiscal year 2023, with September’s numbers yet to be published. When that final month is tallied, 2023 could break fiscal year 2022’s record-breaking number of 2.3 million migrant encounters.

During a committee meeting on Tuesday, Birdwell said SB 11 could face a legal challenge by the federal government. The U.S. Supreme Court and lower federal courts have ruled that the federal government has sole authority to enforce the country’s immigration laws. Over the years, states have tried to implement their own immigration laws, but after legal challenges those laws have been overturned or watered down.

Still, Birdwell said he is confident his bill could win a legal challenge if the federal government were to sue Texas.

"It is carefully tailored to avoid intruding on federal immigration enforcement authority while providing law enforcement with an important new tool to deter improper or unlawful entry into Texas," he said during the committee meeting.

Birdwell’s proposal faced opposition from immigrant rights advocates and Dallas County Assistant Administrator Charles Reed, who testified during the committee meeting that if it became law, it could overwhelm county jails with migrants arrested by state law enforcement. He warned the county may have to raise property taxes if it has to pay to jail a significant number of migrants.

“We are absolutely terrified that this bill will take us over our [jail capacity],” Reed said.

A financial analysis of the bill says there’s not enough data to estimate its cost, but adding a new criminal offense may cause “additional demands upon state correctional resources due to a possible increase in the number of individuals placed under supervision in the community or sentenced to a term of confinement.”