As Texas’ controversial immigration law, Senate Bill 4, remains in legal limbo following a challenge from an appellate court, El Paso District Attorney Bill Hicks, a Republican, said Friday that he won’t prosecute cases “where someone’s rights and civil liberties have been violated.”
If it goes into effect, the state law would make unauthorized border crossing a state crime, giving local law enforcement the power to arrest and potentially deport people who cross the border without authorization.
A first time offense under SB 4 is a class B misdemeanor carrying a punishment of up to six months in jail, while for subsequent offenses a person could face a second-degree felony charge and up to 20 years in prison. The law’s author claims SB 4 is intended to target recent migrants, but police could arrest someone who is undocumented.
At a Downtown press conference on Friday afternoon, Hicks said he said he wasn’t sure when the federal Fifth Circuit Court of Appeals might issue a ruling after that court and the U.S. Supreme Court have lobbed the case back and forth in recent days.
But if SB 4 goes into effect at some point, Hicks said law enforcement officers could only arrest a person they suspect of being in the U.S. illegally if they physically “see the person entering Texas from a foreign country.”
“We’re very conscious of any kind of allegations of profiling,” Hicks said. “We’re very zealously guarding individuals’ civil liberties.”
Immigration law falls under federal jurisdiction and is enforced by agencies under the U.S. Department of Homeland Security. Critics of SB 4 say the new law is an unconstitutional attempt to usurp the federal government’s authority while forcing local police to reallocate already strained resources.
But Gov. Greg Abbott and Republican lawmakers have complained the federal government is not doing an adequate job. Since taking the gubernatorial office in 2015, Abbott has removed Texas from the federal refugee resettlement program, expanded U.S.-Mexico border wall construction and commenced Operation Lone Star, which deploys National Guard members and Department of Public Safety troopers to the border.
Abbott signed SB 4 into law in December 2023 after it passed both the Republican-majority Texas House and Senate.
In response, the American Civil Liberties Union, the ACLU of Texas and the Texas Civil Rights Project sued Texas on behalf of two immigrant rights organizations, Las Americas Immigrant Advocacy Center in El Paso and American Gateways in Texas.
On Friday, Hicks said that if a person crosses the border over Mexico into New Mexico, and then that person enters Texas, local law enforcement officers could not arrest the individual under SB 4, unless they’ve been previously deported, Hicks said.
“There has to be reasonable suspicion for the officer to (detain) a person, and then they have to be able to develop probable cause to make the arrest,” he said.
Even if it goes into effect, however, the DAs office doesn’t expect to see many cases related to SB 4 in El Paso County or in neighboring counties Hudspeth and Culberson that are within the judicial district. That’s because of the proximity to New Mexico and the fact a migrant could easily cross over the Texas-New Mexico state border unlike in areas of Texas such as Del Rio or Brownsville.
Hicks listed some concerns about the law’s potential impact, including the fact there’s not much room in the county jail to book a large number of undocumented immigrants. And neither his office nor the jail have the resources to prioritize nonviolent or non-DWI offenses, Hicks said.
The DAs office is more focused on prosecuting cases involving violence or smugglers and illegal stash houses in El Paso, he said.
Meanwhile, the El Paso County Sheriff’s office and El Paso Police Department have said they would not make enforcing SB 4 a priority.
There’s also apparently a lack of clarity over how exactly the law would be implemented if it clears legal hurdles. Hicks said if an individual is taken to the border to be deported, Mexico has to accept that person into the country. If Mexico refuses, Hicks said it was unclear what would happen next.
“I assume that they would then be referred to Border Patrol,” he said. “But I don’t have an answer for that.”
The murkiness of how the law would be enforced “has caused a lot of question marks in the minds of law enforcement” about whether they need to be prepared to enforce the immigration law or not, Hicks said.
“There are a lot of questions that you can start running down the rabbit trails, and it leads you to the point where the prosecutor kind of holds their hands up and says, ‘I don’t know.’”
