With only about two days left in the special legislative session, Texas Republicans have all but given up hope of passing a sweeping immigration enforcement bill considered a priority by Governor Greg Abbott and the rest of the state’s GOP leadership.
The Texas Senate met briefly on Sunday afternoon but adjourned without taking up House Bill 4.
The chamber’s afternoon schedule included a possible debate on the measure, which would create a new state crime for unauthorised entry into Texas from Mexico. With the current special session of the Texas Legislature set to end on Tuesday, HB 4 will likely have to be revisited during the state’s next round of legislative overtime.
Since late May, Abbott has called lawmakers back to Austin three times to deal with unfinished business, including immigration enforcement and education savings accounts (ESAs), a school voucher-like programme. While the education legislation was always considered more contentious, the immigration proposals were caught up in an intra-party skirmish between Lt. Gov. Dan Patrick and House Speaker Dade Phelan, R-Beaumont.
The Texas House passed HB 4 by state Rep. David Spiller, R-Jacksboro, on 26 October. Their version makes unauthorised entry into Texas a Class B misdemeanour – or higher, depending on the suspect’s criminal history. But police could instead order the suspect to return to a port of entry and return to the country from which they entered. If the person does not comply, they could be charged with a second-degree felony, which carries a prison sentence of two to 20 years.
Citing concerns about whether the bill would conflict with federal law, state Sen. Brian Birdwell, R-Granbury, amended the bill’s language during a Senate committee hearing last week. His version of the bill instead required that the migrant be turned over to federal authorities for deportation.
The sparring between the state’s Republican leaders began shortly thereafter.
“The House version of HB4 does not require proper identification of suspects, fingerprinting, or a background check, and allows illegal border crossers to return whenever they want, over and over again,” Patrick said in a post on X. “Even if returned to the border, this policy would allow unidentified hardened criminals and terrorists to slip through the cracks and cross the border over and over again.”
Phelan quickly hit back with his take on the Senate changes.
“Dan Patrick’s baseless criticism of House Bill 4 is a transparent attempt to distract from his chamber’s own impotent response to the growing crisis at our border – a crisis that demands decisive action, not the ineffective strategies being peddled by the Senate,” Phelan said in a statement. “The House bill was carefully crafted with the governor’s office to effectively deter illegal crossings and quickly return migrants to their point of entry, while the Senate’s pro-illegal immigration bill would incarcerate undocumented immigrants for up to 99 years and saddle Texas taxpayers with the exorbitant costs of their long-term incarceration, including health care, housing and food.”
Steven Aranyi, a spokesman for Patrick, told The Texas Newsroom that the House language makes fingerprinting optional.
“The House version allows law enforcement officials to accept whatever the illegal border crosser tells them without requiring further verification to ensure they are not releasing a terrorist or hardened criminal,” Aranyi wrote in an email. “This is too great a risk to take.”
Though the disagreement could seemingly have been resolved by tweaking the bill’s language, the House instead halted its action on Thursday and said it would sit tight and wait for the Senate. It’s also unclear whether, had an agreement been reached, there would have been enough time for the two chambers to iron out the differences in the bill in a conference committee before the special session ends on Tuesday.
Lieutenant Governor Patrick seemed to foreshadow the inevitable when he struck a more conciliatory tone over the weekend.
“The speaker needs to work with the governor’s team and the Senate to pass a great bill on day one of the new special session, which could start as early as Wednesday. It’s up to him,” he wrote.
Planning a court challenge?
While chamber leaders air their grievances on social media and in statements to the press, immigration and legal experts are adamant that whichever version of the bill makes it to Abbott’s desk, a challenge in federal court is imminent. That’s because immigration is primarily a federal function.
During a committee hearing last week, Lisa Graybill, vice president for law and policy at the National Immigration Law Center, said HB 4 requires a state court to determine a person’s immigration status, which is a matter for federal immigration judges.
“[House Bill 4] is clearly preempted by federal law, no matter how many times people on this panel say it’s not,” she testified. “You can’t put lipstick on this pig, this is undeniably the state of Texas trying to regulate immigration, and the federal government already occupies that space.”
But the state’s Republican leadership is likely to welcome a legal challenge that could go all the way to the US Supreme Court, which could potentially revisit a 2012 ruling that said immigration was primarily a federal responsibility.
