Update: 3:45 p.m. Thursday, Oct. 2: The Texas Senate Committee on Border Security on Wednesday amended portions of House Bill 4, including the section that would have allowed police to take people suspected of crossing the border illegally to a port of entry and order them back to Mexico. The updated language states that migrants must have been convicted of a crime and served their time before they can be handed over to federal authorities at a port of entry “for proper federal disposition.” Committee Chair Sen. Brian Birdwell said the change “neither enforces or contradicts” federal immigration law, therefore does not violate the 10th Amendment. The bill now goes to the Senate to take up, possibly on Sunday.

Original story:

El Paso leaders and candidates for top law enforcement positions are grappling to understand the potential impact of a controversial bill in the Texas Legislature that would allow local police to arrest or send back migrants suspected of crossing the border illegally.

The city and county governments said their legal departments are looking at the implications of House Bill 4, which has passed the Texas House and is expected to be approved by the Senate and signed by Gov. Greg Abbott as part of his border security campaign.

City leaders “prefer not to speculate about the potential policy as we would need to conduct more expansive research to fully understand the scope of the policy and its impact, should the state vote to approve it,” a city spokeswoman said via email. The El Paso County Commissioners Court “hasn’t taken a stance on the issue,” a county spokeswoman said in an email.

HB 4 makes it a state crime to illegally cross the border into Texas – a misdemeanor for first time-offenders and a felony for repeat offenders. It authorizes state and local police to arrest and jail migrants suspected of entering the United States without authorization – and gives them the option to return offenders to a port of entry and order them back to Mexico.

U.S. Department of Homeland Security officials said they could not comment on specific legislation, but said that the federal government – and not individual states – is charged with “determining how and when to remove noncitizens for violating immigration laws. State actions that conflict with federal law are invalid under the Supremacy Clause of the Constitution.”

HB 4 follows several attempts by Abbott and other state Republican lawmakers to push the state’s powers to enact immigration policies in response to record numbers of migrants entering the U.S through Texas border cities.

State Rep. David Spiller, R-Jacksboro, the primary author of the bill, didn’t respond to requests for comment from El Paso Matters. But in a press release, Spiller called the legislation a “Texas solution to a Texas problem.”

The bill is one of three related to border security and immigration approved during the special legislative session. House Bill 6 appropriates $1.5 billion for border barriers, including building out more sections of the border wall; while Senate Bill 4 increases penalties for human smugglers and stash house operators, making smuggling a third-degree felony with a minimum 10-year prison sentence.

Immigration enforcement in local hands

The passage of HB 4 would put immigration enforcement – a duty of the federal government under the U.S. Constitution – in the hands of state and local officials: El Paso police and the county sheriff officers who enforce criminal laws, with the latter also supervising the county jail and its prisoners, and the district attorney who determines whether grounds for criminal prosecution of cases exists and presents the cases at trial.

While sitting local government officials will be charged with determining whether and how to enforce the legislation in its onset, the bill and other immigration issues will be key topics in the 2024 primary and general election. Winners, including the county sheriff and district attorney, would take office in January 2025.

Most candidates who’ve announced their intention to run for those seats raised concerns about the bill’s legality and viability, and said they would have to work with county attorneys to determine what their rights and responsibilities are under the legislation.

Sitting El Paso District Attorney Bill Hicks said his job is to enforce the laws that get handed down, and that prosecutors have discretion to do “what we feel is justice in each and every case.”

“I do not have any intention of targeting any person or group of people,” he said. “If law enforcement were to present one of these cases to our office, we will evaluate it on a case-by-case basis.”

HB 4 doesn’t mandate that district attorney offices prosecute the cases.

Saying the DA’s office would emphasize “justice” and “making sure we’re doing the right thing in every case,” Hicks added that he hesitates to say whether he’d emphasize or de-emphasize any particular type of case.

A Republican appointed to the seat by Abbott in December 2022 after former DA Yvonne Rosales resigned, Hicks hasn’t formally announced whether he will run to keep the position. 

He said he believes Democratic legislators have pointed out reasonable concerns regarding the viability of this legislation given some of the federal case law in place, specifically the Supremacy Clause.

“However, until a lawsuit is brought or we are specifically enjoined from prosecution,” he said, “we will continue to look at each case on a case-by-case basis should the legislation pass and become a law.

Hicks expressed concern about the DA’s office being able to handle an influx of criminal cases that might result from these types of charges because it’s still working on a backlog.

He said that while HB 4 doesn’t provide funding for the additional workload it would create, there is money available through the governor’s Border Prosecution Unit. The unit provides resources and training for DA offices to investigate and prosecute border-related offenses along the border and for counties impacted by them, the governor’s website states. Other grant funding is available through Abbott’s border security initiative Operation Lone Star, Hicks noted.

James Montoya, a district attorney candidate who lost to Rosales in the 2020 Democratic primary, said he believes the bill won’t stand for long because the U.S. Constitution doesn’t allow individual states to create or enforce their own immigration laws.

“It is very likely that federal courts are going to find that HB4 violates the Supremacy Clause and is unconstitutional,” he said, adding that the bill also raises due process concerns.

“If HB4 is allowed to go into effect, it is a virtual certainty that Hispanic U.S. citizens will be swept up in any enforcement action and deported, which raises significant due process and equal protection concerns and creates another constitutional infirmity,” he said. “HB4 cannot and should not be enforced by state actors until its constitutionality is definitively ruled upon.”

Alma Trejo, who resigned as judge for the El Paso County Criminal Court No. 1 to run for the DA office, didn’t return calls for comment.

Candidate Nancy Casas, a principal attorney in the El Paso County Attorney’s Office, said she would wait for the final text of the bill before commenting in detail about it.

However, she said she’s concerned about the workload the cases would create, the costs the county would incur, and how it could impact jail capacity. She also said she’s concerned about the constitutionality of the legislation.

“As the DA, I would follow the law,” she said, adding that she’s not a constitutional attorney. “If it is a crime and we need to hold somebody accountable, I’d do so in a manner that was fair.”

Casas said any action she would take as DA would be in consultation with the sheriff’s and county attorney’s office.

Ryan Urrutia, a candidate for sheriff who spoke to El Paso Matters in his capacity as commander with the El Paso County Sheriff’s Office, said the County Attorney’s Office is monitoring the bill and what its final wording will mean for the county.

Urrutia said he opposes the legislation in part because he believes immigration enforcement is a federal responsibility and wouldn’t want the department to carry the extra responsibility. But he said the county could see a large number of arrests occur and quickly overwhelm jails – which in turn would impact local taxpayers since the bill as it stands doesn’t provide additional funding for those operations.

“We could see high numbers of arrests occur and that affects the capacity of our jails and us being able to earn revenue off federal inmates who we could no longer house,” Urrutia said. “That would cause a ripple effect to our local taxpayers.”

Urrutia is one of five candidates vying to replace retiring Sheriff Richard Wiles, who has thrown his support behind Urrutia. Three other candidates – Oscar Ugarte, Raul Mendiola and Robert “Bobby” Flores – expressed similar concerns. Michael Gonzalez didn’t return calls for comment.

Flores, who recently retired from the department after serving 33 years, said he “definitely would not support something like that,” adding that such laws hurt local sheriff’s relationship with the community. 

“We may have people who are here unlawfully and they may be victims of crimes and they may be witnesses to crimes, and then they’re not going to want to call on police officers to come in and investigate crimes,” he said. “I think that that would hamper our efforts to keep the entire community safe.”

Flores said the legislation also puts undue burden on local law enforcement agencies that don’t have the manpower for the additional work they’re not qualified to perform.

Ugarte, who serves as a county constable, said he opposes local authorities conducting federal enforcement, especially when they’re not qualified to do so.

“I’d worry that we’d be violating some kind of rights,” he said. “Officers locally are not properly trained on immigration law or what rights (migrants) have to request asylum. There’s too many factors to consider. We already have enough on our plates dealing with all the laws that need to be enforced.”

Mendiola, a former El Paso police officer, said he would have to study the bill and its implications more closely, but said he believes immigration is a federal issue that he would “probably not enforce.”

He said he’d have to see if the legislation sets forth any penalties for local law enforcement agencies that don’t conduct such arrests and consult with the county attorney on the matter.

“But unless they (migrants) commit a crime, I would not do that,” Mendiola said.