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With only about two days left in the special legislative session, Texas Republicans have all but given up hope on passing a sweeping immigration enforcement bill deemed a priority by Gov. Greg Abbott and the state’s other GOP leadership.
The Texas Senate met briefly Sunday afternoon but gaveled out without taking up House Bill 4.
The chamber’s afternoon schedule included possible debate on the measure, which would create a new state crime for unauthorized entry into Texas from Mexico. With the current special session of the Texas Legislature ending Tuesday, HB 4 will likely need to be revisited during the state’s next round of legislative overtime.
Since late May, Abbott has ordered lawmakers back to Austin three times to handle unfinished business, including immigration enforcement and education savings accounts (ESAs), a school voucher-like program. While the education legislation was always considered more contentious, the immigration proposals have been caught 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 Oct. 26. Their version makes unauthorized entry across the border into Texas a class B misdemeanor — or a higher penalty depending on the suspect’s criminal history. But police could also choose to instead order the suspect to return to a port of entry and return to the country they entered from. If the person failed to comply, they could be charged with a second-degree felony, which carries prison time of two to 20 years.
Citing concerns about whether the bill would conflict with federal law, state Sen. Brian Birdwell, R-Granbury, substituted language in the bill during a Senate committee hearing last week. His version of the bill instead required that the migrant be transferred to federal authorities for deportation.
The sparring between the state’s top Republican leadership began shortly thereafter.
“The House version of HB4 does not require proper identification of suspects, fingerprints, or a background check and allows illegal border crossers to return whenever they want, time and time 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’s changes.
“Dan Patrick’s baseless critique of House Bill 4 is a transparent attempt to deflect from his chamber’s own impotent response to the growing crisis at our border — a crisis demanding decisive action, not the ineffective strategies being peddled by the Senate,” Phelan said in a statement. “The House bill was carefully designed with the Office of the Governor to effectively repel illegal border crossings and swiftly return migrants to their point of entry, whereas the Senate’s pro-illegal immigration bill would house undocumented immigrants for up to 99 years, shouldering Texas taxpayers with the exorbitant costs of their long-term detention, including healthcare, housing, and meals.”
Stevn Aranyi, a spokesperson for Patrick, told The Texas Newsroom that the House language makes fingerprinting optional.
“The House version allows law enforcement officers to accept whatever the illegal border crosser tells them without requiring further verification to ensure they are not releasing a terrorist or a hardened criminal,” Aranyi wrote in an email. “This is too big of a risk to take.”
Though the disagreement seemingly could have been resolved by tweaking the bill’s language, the House instead halted its floor action Thursday and said it would stand at ease and wait on the Senate. It’s also unclear if, had an agreement been made, there would have been enough time for both chambers to iron out the differences in the bill via a conference committee before the special session ends Tuesday.
Lt. Gov. Patrick seemed to foreshadow the inevitable when he took a more conciliatory tone over the weekend.
“The Speaker needs to work with the Governor’s team and the Senate on passing a great bill from day one of the new special session, which may start as soon as Wednesday. It’s up to him,” he posted.
Teeing up a court challenge?
As chamber leaders air out their grievances on social media and through statements to the press, immigration and legal experts are steadfast that whatever version of the bill makes it to Abbott’s desk, a challenge in federal court is looming. That’s because immigration is primarily a function of the federal government.
During a committee hearing last week Lisa Graybill, the vice president of 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 squarely preempted by federal law, no matter how many times folks on this panel say it isn’t,” she testified. “You cannot put lipstick on this pig, this is inarguably the state of Texas attempting to regulate immigration and the federal government already occupies that space.”
But the state’s Republican leadership will likely welcome a court challenge that could reach up to the U.S. Supreme Court, which could possibly revisit a 2012 ruling where it deemed that immigration is mainly a federal responsibility.
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