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Texas Republicans expand controversial bill that would create new border law enforcement agency

 A Texas DPS vehicle sits at the border fence in El Paso on May 11, 2023
Julian Aguilar
The Texas Newsroom
A Texas DPS vehicle sits at the border fence in El Paso on May 11, 2023

A controversial Texas House bill that would create a new police force to patrol the state’s border with Mexico was unveiled in a Senate committee Thursday and now includes several additional border security provisions.

House Bill 7, by state Rep. Ryan Guillen, R-Rio Grande City, passed the Texas House last week with language to create the Border Protection Unit. The unit was renamed the Texas Border Force during a Thursday hearing of the Texas Senate Committee on Border Security.

The bill now clarifies the unit would be under the direction of the Texas Rangers, a division of the Texas Department of Public Safety. The border force would be led by the chief of the Texas Rangers.

Senate Republicans also added language onto HB 7 from several standalone provisions, including Senate Bill 2424 and Senate Bill 600. SB 2424, by state Sen. Brian Birdwell, R-Granbury, would create a new state crime for unauthorized entry into Texas from Mexico. The offenses range from a class A misdemeanor to state felonies, depending on the accused person’s criminal history. SB 600, also by Birdwell, would increase the minimum penalty for human smuggling from two to 10 years.

Both Senate bills have passed the upper chamber and were referred to House committees last month, though they have not been scheduled for a hearing. Saturday is the deadline for House committees to advance Senate bills and it’s unclear if those proposals would have cleared that hurdle before the deadline on their own.

The changes to HB 7 were first announced publicly in the committee hearing Thursday morning and witnesses and media were not able to access a copy of the changes.

The Texas Border Force

The latest version of HB 7 defines the broad law-enforcement powers that would be given to the Texas Border Force chief and its officers. They include intelligence gathering and analysis, coordination and command of state agencies on border operations, surveillance and detection of criminal activity and coordination of local, state and federal agencies, among others. The department would be open to current peace officers and members of the Texas DPS, but the bill also seeks to recruit members with prior military experience, including the Texas National Guard, and former members of the U.S. Border Patrol.

The new language of HB 7 also states that local governments “may not limit the jurisdiction of the authority of the new unit,” Birdwell told committee members. That came after House Republicans tried unsuccessfully last week to amend HB 7 to rid it of an opt-in provision by county commissioners.

Democrats and immigrant rights groups have rallied in opposition to the bill, arguing it is blatantly unconstitutional and could lead to racial profiling similar to what border communities have experienced under Operation Lone Star, a state-led border security mission initiated by Gov. Greg Abbott two years ago.

“As you know, states cannot create or enforce immigration law because the federal government explicitly occupies the field,” state Sen. Cesar Blanco, D- El Paso, told Birdwell. “Is the state creating and enforcing immigration laws in this bill by creating a new criminal offense for improper entry from foreign nations? And are we creating a border force to enforce this new state immigration law?”

Birdwell said that wasn’t the case because under the bill, saying Texas has the authority to prosecute people for trespassing once they cross the border from Mexico.

“We are not enforcing immigration law. We process those individuals that have committed a state crime and DPS then has the ability to either process the crime,” he said. “Or, if there is not crime but we’ve detained people at the border, our first duty is then to provide them to Border Patrol.”

Even proponents of the bill acknowledge it will inevitably be challenged in federal court, despite Bridwell’s assurances. Tom Glass, the founder of Texas Constitutional Enforcement, urged the committee to adopt language that would give the governor authority to officially declare an “invasion” and invoke a self-defense clause to protect the state from legal challenges.

“We need to give Constitutional cover and support for our governor,” Glass said. “We need to defend our governor, [who is] protecting us, when we get hauled into federal court. That’s got to be in this bill.”

Samantha Serna Uribe, a staff attorney with the Mexican American Legal Defense and Educational Fund, or MALDEF, said that HB 7 as written would conflict with an earlier U.S. Supreme Court ruling that made clear state governments cannot enforce federal immigration laws.

In 2012, the U.S. Supreme Court struck down some of the major provisions of legislation in Arizona that sought to expand state-based immigration. The court ruled that most provisions of that law were preempted by federal statute.

“Empowering state officers to decide who unlawfully crosses the border with Mexico conflicts with federal immigration law, as does creating a state immigration offense,” she told the committee. Serna Uribe then stated the same Senate committee published an interim report last year conceding as much.

“[The report stated] ‘in the context of immigration any state law that attempts to regulate immigration will be preempted since immigration authority is exclusively the responsibility of the federal government,’” she said.

The bill was left pending in committee while the Texas Senate met as a whole Thursday morning. The committee will resume once the upper chamber adjourns for the day. The bill is likely to advance to the full Senate once it is voted out. But what the final version will look like is still unclear.

Birdwell said the proposal will likely go to a conference committee, where members from the Texas House and Senate will iron out the differences in their respective proposals.

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Got a tip? Email Julián Aguilar at jaguilar@kera.org.You can follow Julián on Twitter @nachoaguilar.

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Julián Aguilar