| |
| |
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|
A BILL TO BE ENTITLED
|
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|
AN ACT
|
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|
relating to the enforcement of immigration laws, to the |
|
|
investigation, prosecution, and punishment of certain criminal |
|
|
offenses concerning illegal immigration, and to certain employment |
|
|
and labor practices and requirements regarding immigration and |
|
|
immigrants; providing civil and criminal penalties. |
|
|
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
|
|
SECTION 1. Chapter 2, Code of Criminal Procedure, is |
|
|
amended by adding Article 2.251 to read as follows: |
|
|
Art. 2.251. COOPERATION AND ASSISTANCE IN ENFORCEMENT OF |
|
|
FEDERAL IMMIGRATION LAW. (a) In this article, "illegal alien" |
|
|
means a person who: |
|
|
(1) is not a citizen or national of the United States; |
|
|
and |
|
|
(2) is unlawfully present in the United States |
|
|
according to the terms of the Immigration Reform and Control Act of |
|
|
1986 (8 U.S.C. Section 1101 et seq.). |
|
|
(b) During any detention or arrest made by a peace officer |
|
|
or law enforcement agency of this state or of a political |
|
|
subdivision of this state, the officer or agency shall make a |
|
|
reasonable attempt, if practicable, to determine the immigration |
|
|
status of the person detained or arrested. The investigation of a |
|
|
person's immigration status may not serve as the grounds for the |
|
|
detention or arrest and may not unlawfully prolong the period in |
|
|
which the person is detained or is maintained in custody by the |
|
|
officer or agency. |
|
|
(c) The peace officer or law enforcement agency may not |
|
|
attempt to determine the person's immigration status under |
|
|
Subsection (b) if the attempt could hinder or obstruct a criminal |
|
|
investigation. |
|
|
(d) For purposes of Subsection (b), a person is presumed not |
|
|
to be an illegal alien if the person provides to the peace officer |
|
|
or law enforcement agency any of the following documentation: |
|
|
(1) a driver's license or personal identification |
|
|
certificate issued to the person under Chapter 521, Transportation |
|
|
Code; |
|
|
(2) a tribal enrollment card or other form of tribal |
|
|
identification issued to the person; or |
|
|
(3) any other form of identification issued to the |
|
|
person by the United States, by this state or another state, or by a |
|
|
political subdivision of this state or another state, if before |
|
|
issuing that form of identification the applicable entity requires |
|
|
proof of the person's legal presence in the United States. |
|
|
(e) A person's immigration status may be verified after an |
|
|
investigation under Subsection (b) by: |
|
|
(1) a peace officer or other law enforcement officer |
|
|
of this state who is authorized under federal law to verify or |
|
|
ascertain a person's immigration status; or |
|
|
(2) a federal law enforcement officer, in accordance |
|
|
with 8 U.S.C. Section 1373(c). |
|
|
(f)(1) Notwithstanding any other law, after a verification |
|
|
of status under this article, a law enforcement agency may securely |
|
|
transport an illegal alien in the agency's custody to: |
|
|
(A) a federal facility in this state; or |
|
|
(B) any other point of transfer into federal |
|
|
custody that is outside the jurisdiction of the law enforcement |
|
|
agency, including a point of transfer located in another state. |
|
|
(2) The law enforcement agency must obtain judicial |
|
|
authorization before transporting the illegal alien to a point of |
|
|
transfer that is located in another state. |
|
|
(g) If an illegal alien is convicted of an offense under the |
|
|
law of this state or of a political subdivision of this state, |
|
|
United States Immigration and Customs Enforcement or United States |
|
|
Customs and Border Protection shall be immediately notified of that |
|
|
fact: |
|
|
(1) on the discharge of the alien from confinement or |
|
|
on the assessment of any monetary obligation that is imposed on the |
|
|
alien; and |
|
|
(2) as otherwise required by law. |
|
|
(h) An official or agency of this state or of a political |
|
|
subdivision of this state may not limit or restrict the enforcement |
|
|
of federal immigration law to less than the full extent permitted by |
|
|
federal law. |
|
|
(i) Except as provided by federal law, an official or agency |
|
|
of this state or of a political subdivision of this state may not be |
|
|
prohibited or restricted from sending, receiving, or maintaining |
|
|
information relating to the immigration status of any person or |
|
|
from exchanging that information with any other governmental entity |
|
|
of the United States, this state, or a political subdivision of this |
|
|
state for the following purposes: |
|
|
(1) determining eligibility for any public benefit, |
|
|
service, or license provided by the United States, this state, or a |
|
|
political subdivision of this state; |
|
|
(2) verifying any claim of residence or domicile if |
|
|
determination of residence or domicile is required under the law of |
|
|
this state or under a judicial order issued in a civil or criminal |
|
|
proceeding in this state; |
|
|
(3) determining whether the person is in compliance |
|
|
with any applicable registration laws prescribed by Chapter 7, |
|
|
Title II, Immigration and Nationality Act (8 U.S.C. Section 1301 et |
|
|
seq.); or |
|
|
(4) in accordance with 8 U.S.C. Sections 1373 and |
|
|
1644. |
|
|
SECTION 2. Chapter 2, Code of Criminal Procedure, is |
|
|
amended by adding Article 2.31 to read as follows: |
|
|
Art. 2.31. DETERMINATION REGARDING CITIZENSHIP STATUS. In |
|
|
the investigation of an offense under Section 20A.03, Penal Code, |
|
|
the determination of whether a person is an illegal alien may be |
|
|
made only by: |
|
|
(1) a peace officer or other law enforcement officer |
|
|
of this state who, under federal law, is authorized to verify or |
|
|
ascertain a person's immigration status or work authorization; or |
|
|
(2) a federal law enforcement officer, in accordance |
|
|
with 8 U.S.C. Section 1373(c). |
|
|
SECTION 3. Chapter 6, Code of Criminal Procedure, is |
|
|
amended by adding Article 6.075 to read as follows: |
|
|
Art. 6.075. PREVENTION OF HUMAN TRAFFICKING OFFENSES. (a) |
|
|
In this article, "motor vehicle" has the meaning assigned by |
|
|
Section 501.002, Transportation Code. |
|
|
(b) Regardless of whether a peace officer's subjective |
|
|
intent is to prevent the commission of an offense under Section |
|
|
20A.02, Penal Code, the officer may stop and detain the operator of |
|
|
a motor vehicle if the officer has an objectively reasonable |
|
|
suspicion that the operator has engaged in conduct that |
|
|
constitutes: |
|
|
(1) an offense under Subtitle C, Title 7, |
|
|
Transportation Code; |
|
|
(2) a civil traffic offense; or |
|
|
(3) a violation of a county or municipal order or |
|
|
ordinance regulating traffic. |
|
|
(c) If an officer making a stop under Subsection (b) |
|
|
observes evidence leading to a reasonable suspicion of the |
|
|
commission of an offense under Section 20A.03, Penal Code, the |
|
|
officer may: |
|
|
(1) continue the detention for any period necessary to |
|
|
investigate the commission of that offense; and |
|
|
(2) arrest without warrant any person the officer has |
|
|
probable cause to believe has committed that offense. |
|
|
SECTION 4. Articles 14.03(a) and (f), Code of Criminal |
|
|
Procedure, are amended to read as follows: |
|
|
(a) Any peace officer may arrest, without warrant: |
|
|
(1) persons found in suspicious places and under |
|
|
circumstances which reasonably show that such persons have been |
|
|
guilty of some felony, violation of Title 9, Chapter 42, Penal Code, |
|
|
breach of the peace, or offense under Section 49.02, Penal Code, or |
|
|
threaten, or are about to commit some offense against the laws; |
|
|
(2) persons who the peace officer has probable cause |
|
|
to believe have committed an assault resulting in bodily injury to |
|
|
another person and the peace officer has probable cause to believe |
|
|
that there is danger of further bodily injury to that person; |
|
|
(3) persons who the peace officer has probable cause |
|
|
to believe have committed an offense defined by Section 25.07, |
|
|
Penal Code (violation of Protective Order), or by Section 38.112, |
|
|
Penal Code (violation of Protective Order issued on basis of sexual |
|
|
assault), if the offense is not committed in the presence of the |
|
|
peace officer; |
|
|
(4) persons who the peace officer has probable cause |
|
|
to believe have committed an offense involving family violence; |
|
|
(5) persons who the peace officer has probable cause |
|
|
to believe have prevented or interfered with an individual's |
|
|
ability to place a telephone call in an emergency, as defined by |
|
|
Section 42.062(d), Penal Code, if the offense is not committed in |
|
|
the presence of the peace officer; [or] |
|
|
(6) a person who makes a statement to the peace officer |
|
|
that would be admissible against the person under Article 38.21 and |
|
|
establishes probable cause to believe that the person has committed |
|
|
a felony; or |
|
|
(7) persons who the peace officer has probable cause |
|
|
to believe have committed a public offense that, under federal law, |
|
|
makes those persons removable from the United States. |
|
|
(f) In this article: |
|
|
(1) "Family [, "family] violence" has the meaning |
|
|
assigned by Section 71.004, Family Code. |
|
|
(2) "Public offense" means: |
|
|
(A) an offense under the law of this state; or |
|
|
(B) an offense under the law of another state, if |
|
|
the offense contains elements that are substantially similar to the |
|
|
elements of an offense under the law of this state. |
|
|
SECTION 5. Section 3g(a), Article 42.12, Code of Criminal |
|
|
Procedure, is amended to read as follows: |
|
|
(a) The provisions of Section 3 of this article do not |
|
|
apply: |
|
|
(1) to a defendant adjudged guilty of an offense |
|
|
under: |
|
|
(A) Section 19.02, Penal Code (Murder); |
|
|
(B) Section 19.03, Penal Code (Capital murder); |
|
|
(C) Section 21.11(a)(1), Penal Code (Indecency |
|
|
with a child); |
|
|
(D) Section 20.04, Penal Code (Aggravated |
|
|
kidnapping); |
|
|
(E) Section 22.021, Penal Code (Aggravated |
|
|
sexual assault); |
|
|
(F) Section 29.03, Penal Code (Aggravated |
|
|
robbery); |
|
|
(G) Chapter 481, Health and Safety Code, for |
|
|
which punishment is increased under: |
|
|
(i) Section 481.140, Health and Safety |
|
|
Code; or |
|
|
(ii) Section 481.134(c), (d), (e), or (f), |
|
|
Health and Safety Code, if it is shown that the defendant has been |
|
|
previously convicted of an offense for which punishment was |
|
|
increased under any of those subsections; |
|
|
(H) Section 22.011, Penal Code (Sexual assault); |
|
|
(I) Section 22.04(a)(1), Penal Code (Injury to a |
|
|
child, elderly individual, or disabled individual), if the offense |
|
|
is punishable as a felony of the first degree and the victim of the |
|
|
offense is a child; |
|
|
(J) Section 43.25, Penal Code (Sexual |
|
|
performance by a child); [or] |
|
|
(K) Section 15.03, Penal Code, if the offense is |
|
|
punishable as a felony of the first degree; or |
|
|
(L) Section 38.025, Penal Code (Failure to |
|
|
complete or carry alien registration document); or |
|
|
(2) to a defendant when it is shown that a deadly |
|
|
weapon as defined in Section 1.07, Penal Code, was used or exhibited |
|
|
during the commission of a felony offense or during immediate |
|
|
flight therefrom, and that the defendant used or exhibited the |
|
|
deadly weapon or was a party to the offense and knew that a deadly |
|
|
weapon would be used or exhibited. On an affirmative finding under |
|
|
this subdivision, the trial court shall enter the finding in the |
|
|
judgment of the court. On an affirmative finding that the deadly |
|
|
weapon was a firearm, the court shall enter that finding in its |
|
|
judgment. |
|
|
SECTION 6. Section 4(d), Article 42.12, Code of Criminal |
|
|
Procedure, is amended to read as follows: |
|
|
(d) A defendant is not eligible for community supervision |
|
|
under this section if the defendant: |
|
|
(1) is sentenced to a term of imprisonment that |
|
|
exceeds 10 years; |
|
|
(2) is convicted of a state jail felony for which |
|
|
suspension of the imposition of the sentence occurs automatically |
|
|
under Section 15(a); |
|
|
(3) does not file a sworn motion under Subsection (e) |
|
|
of this section or for whom the jury does not enter in the verdict a |
|
|
finding that the information contained in the motion is true; |
|
|
(4) is convicted of an offense for which punishment is |
|
|
increased under Section 481.134(c), (d), (e), or (f), Health and |
|
|
Safety Code, if it is shown that the defendant has been previously |
|
|
convicted of an offense for which punishment was increased under |
|
|
any one of those subsections; |
|
|
(5) is convicted of an offense listed in Section |
|
|
3g(a)(1)(C), (E), or (H), if the victim of the offense was younger |
|
|
than 14 years of age at the time the offense was committed; |
|
|
(6) is convicted of an offense listed in Section |
|
|
3g(a)(1)(D), if the victim of the offense was younger than 14 years |
|
|
of age at the time the offense was committed and the actor committed |
|
|
the offense with the intent to violate or abuse the victim sexually; |
|
|
(7) is convicted of an offense listed in Section |
|
|
3g(a)(1)(J) or (L); or |
|
|
(8) is adjudged guilty of an offense under Section |
|
|
19.02, Penal Code. |
|
|
SECTION 7. Section 5(d), Article 42.12, Code of Criminal |
|
|
Procedure, is amended to read as follows: |
|
|
(d) In all other cases the judge may grant deferred |
|
|
adjudication unless: |
|
|
(1) the defendant is charged with an offense: |
|
|
(A) under Sections 49.04-49.08, Penal Code; or |
|
|
(B) for which punishment may be increased under |
|
|
Section 481.134(c), (d), (e), or (f), Health and Safety Code, if it |
|
|
is shown that the defendant has been previously convicted of an |
|
|
offense for which punishment was increased under any one of those |
|
|
subsections; |
|
|
(2) the defendant: |
|
|
(A) is charged with an offense under Section |
|
|
21.11, 22.011, or 22.021, Penal Code, regardless of the age of the |
|
|
victim, or a felony described by Section 13B(b) of this article; and |
|
|
(B) has previously been placed on community |
|
|
supervision for any offense under Paragraph (A) of this |
|
|
subdivision; [or] |
|
|
(3) the defendant is charged with an offense under: |
|
|
(A) Section 21.02, Penal Code; or |
|
|
(B) Section 22.021, Penal Code, that is |
|
|
punishable under Subsection (f) of that section or under Section |
|
|
12.42(c)(3), Penal Code; or |
|
|
(4) the defendant is charged with an offense under |
|
|
Section 38.025, Penal Code. |
|
|
SECTION 8. Subchapter B, Chapter 402, Government Code, is |
|
|
amended by adding Section 402.036 to read as follows: |
|
|
Sec. 402.036. IMMIGRATION INVESTIGATION AND ENFORCEMENT. |
|
|
(a) The definitions of terms provided by Chapter 53, Labor Code, |
|
|
apply to this section. |
|
|
(b) The attorney general shall, at least once every 90 days, |
|
|
request from the United States Department of Homeland Security a |
|
|
list of employers in this state that are registered with the |
|
|
e-verify program. On receipt of the list, the attorney general |
|
|
shall post the list on the attorney general's Internet website. |
|
|
(c) The attorney general shall retain a copy of each court |
|
|
order received under Section 53.104(f), Labor Code, and make each |
|
|
order available on the attorney general's Internet website. The |
|
|
attorney general shall also include on the attorney general's |
|
|
Internet website a list of employers in this state that have been |
|
|
the subject of a court order entered under Section 53.104, Labor |
|
|
Code. |
|
|
SECTION 9. Subtitle B, Title 2, Labor Code, is amended by |
|
|
adding Chapter 53 to read as follows: |
|
|
CHAPTER 53. EMPLOYMENT OF ILLEGAL ALIENS |
|
|
SUBCHAPTER A. GENERAL PROVISIONS |
|
|
Sec. 53.001. DEFINITIONS. (a) In this chapter: |
|
|
(1) "Economic development incentive" means a grant, |
|
|
loan, or other form of monetary incentive awarded, given, or paid to |
|
|
an employer by a governmental entity in exchange for or as a result |
|
|
of the employer conducting an activity with an economic development |
|
|
purpose. The term does not include a tax exemption, tax rebate, tax |
|
|
credit, or tax refund under the laws of this state. |
|
|
(2) "E-verify program" means the electronic |
|
|
verification of work authorization program of the Illegal |
|
|
Immigration Reform and Immigration Responsibility Act of 1996 (Pub. |
|
|
L. No. 104-208, reprinted in note, 8 U.S.C. Section 1324a), |
|
|
operated by the United States Department of Homeland Security, or a |
|
|
successor work authorization program designated by the United |
|
|
States Department of Homeland Security or other federal agency |
|
|
authorized to verify the work authorization status of newly hired |
|
|
employees pursuant to the Immigration Reform and Control Act of |
|
|
1986 (8 U.S.C. Section 1101 et seq.). |
|
|
(3) "Governmental entity" means: |
|
|
(A) this state; or |
|
|
(B) a political subdivision of this state, |
|
|
including a municipality, a county, or any kind of district. |
|
|
(4) "Illegal alien" has the meaning assigned to the |
|
|
term "unauthorized alien" by 8 U.S.C. Section 1324a(h)(3). |
|
|
(5) "Occupational license" means a license, permit, or |
|
|
other authorization to engage in business in this state that an |
|
|
employer is required to hold to conduct business generally in this |
|
|
state, to conduct business at a particular location in this state, |
|
|
or to engage in a profession or occupation in this state. |
|
|
(b) The definitions of terms provided by Chapter 201 apply |
|
|
to this chapter. |
|
|
[Sections 53.002-53.050 reserved for expansion] |
|
|
SUBCHAPTER B. VERIFICATION OF WORK AUTHORIZATION |
|
|
Sec. 53.051. VERIFICATION OF WORK AUTHORIZATION REQUIRED. |
|
|
An employer shall: |
|
|
(1) verify through the e-verify program the work |
|
|
authorization of each employee hired by the employer; and |
|
|
(2) retain a record of the verification received under |
|
|
Subdivision (1) until the later of: |
|
|
(A) the third anniversary of the date of the |
|
|
verification; or |
|
|
(B) the last day on which the employee is |
|
|
employed by the employer. |
|
|
Sec. 53.052. EMPLOYER ELIGIBILITY FOR ECONOMIC DEVELOPMENT |
|
|
INCENTIVE. (a) In addition to any other eligibility requirement an |
|
|
employer must satisfy before receiving an economic development |
|
|
incentive, to be eligible to receive an economic development |
|
|
incentive an employer must: |
|
|
(1) register with and participate in the e-verify |
|
|
program; and |
|
|
(2) provide proof of that registration and |
|
|
participation to the governmental entity that awards, gives, or |
|
|
pays the economic development incentive. |
|
|
(b) If a governmental entity that awards, gives, or pays an |
|
|
economic development incentive determines that an employer is not |
|
|
in compliance with Subsection (a), the governmental entity: |
|
|
(1) may not award an economic development incentive to |
|
|
the employer; and |
|
|
(2) must notify the employer, by certified mail, of: |
|
|
(A) the governmental entity's decision to not |
|
|
award the incentive based on the employer's noncompliance with |
|
|
Subsection (a); and |
|
|
(B) any right of the employer to appeal the |
|
|
governmental entity's determination of noncompliance. |
|
|
(c) If the governmental entity's noncompliance |
|
|
determination remains valid after all appeals of the governmental |
|
|
entity's determination of noncompliance with Subsection (a) have |
|
|
been exhausted, the employer, not later than the 30th day after the |
|
|
date all appeals have been exhausted, shall repay to the |
|
|
governmental entity any economic development incentive the |
|
|
employer received from the governmental entity during the period in |
|
|
which the employer was determined to be not in compliance. |
|
|
[Sections 53.053-53.100 reserved for expansion] |
|
|
SUBCHAPTER C. PROHIBITED EMPLOYMENT AND CONTRACTS |
|
|
Sec. 53.101. CERTAIN EMPLOYMENT AND CONTRACTS PROHIBITED. |
|
|
An employer may not intentionally or knowingly: |
|
|
(1) employ or contract with an illegal alien; or |
|
|
(2) contract or subcontract for the performance of |
|
|
labor with an individual or another employer that employs or |
|
|
contracts with an illegal alien to perform work under the contract |
|
|
or subcontract. |
|
|
Sec. 53.102. COMPLAINT FORM AND PROCEDURE; CRIMINAL |
|
|
PENALTY. (a) The attorney general shall prescribe a complaint form |
|
|
and a complaint process through which a person may submit to the |
|
|
attorney general an alleged violation of Section 53.101. The |
|
|
attorney general may not require a complainant to include the |
|
|
complainant's social security number on the complaint form or to |
|
|
have the form notarized. |
|
|
(b) The attorney general shall investigate each alleged |
|
|
violation of Section 53.101 received through the submission of the |
|
|
complaint form prescribed under Subsection (a). The attorney |
|
|
general may investigate an alleged violation of Section 53.101 that |
|
|
the attorney general receives in a manner other than through the |
|
|
submission of the complaint form prescribed under Subsection (a). |
|
|
(c) In investigating an alleged violation of Section |
|
|
53.101, the attorney general shall request verification of the |
|
|
immigration status and work authorization of an alleged illegal |
|
|
alien in accordance with 8 U.S.C. Section 1373(c). |
|
|
(d) This section may not be construed to prohibit the filing |
|
|
of an anonymous complaint that is not submitted on the complaint |
|
|
form prescribed under Subsection (a). |
|
|
(e) The attorney general may not investigate a complaint |
|
|
under this subchapter that does not allege a violation of Section |
|
|
53.101 and that is based solely on the race, color, or national |
|
|
origin of an individual. |
|
|
(f) A person commits an offense if the person files a false |
|
|
complaint under this section. An offense under this subsection is a |
|
|
Class C misdemeanor. |
|
|
Sec. 53.103. ENFORCEMENT. (a) If the attorney general, |
|
|
after verifying the immigration status and work authorization of an |
|
|
individual as required by Section 53.102(c), determines that an |
|
|
employer violated Section 53.101, the attorney general shall |
|
|
forward a copy of the complaint and the results of the investigation |
|
|
to: |
|
|
(1) United States Immigration and Customs |
|
|
Enforcement; |
|
|
(2) the law enforcement agency with primary |
|
|
jurisdiction over the geographic area in which the alleged illegal |
|
|
alien resides; and |
|
|
(3) the county attorney for the county in which the |
|
|
alleged illegal alien is or was last employed by or performed work |
|
|
for the employer. |
|
|
(b) On receipt of a complaint and the results of an |
|
|
investigation under Subsection (a), the county attorney shall bring |
|
|
an action to enforce Section 53.101 and shall request an expedited |
|
|
hearing on the matter. |
|
|
(c) A county attorney may not bring a second or subsequent |
|
|
action against an employer to enforce Section 53.101 before any |
|
|
other action brought under this subchapter is concluded. |
|
|
Sec. 53.104. COURT PROCEEDINGS AND ORDER GENERALLY. (a) |
|
|
The court in which an action is brought under Section 53.103(b) |
|
|
shall set a hearing in the matter as soon as possible after the date |
|
|
the county attorney requests the expedited hearing but not later |
|
|
than the 30th day after that date. |
|
|
(b) At a hearing under this section, in determining whether |
|
|
an individual employed by or performing work for an employer is an |
|
|
illegal alien the court may: |
|
|
(1) rely only on the federal government's |
|
|
determination of the alleged illegal alien's immigration status and |
|
|
work authorization received by the attorney general under Section |
|
|
53.102(c); |
|
|
(2) take judicial notice of the federal government's |
|
|
determination of the immigration status and work authorization of |
|
|
the alleged illegal alien received by the attorney general under |
|
|
Section 53.102(c); and |
|
|
(3) in accordance with 8 U.S.C. Section 1373(c), |
|
|
request the federal government to provide automated or testimonial |
|
|
verification of the immigration status and work authorization of |
|
|
the alleged illegal alien. |
|
|
(c) If, after hearing and notice, the court finds that an |
|
|
employer violated Section 53.101, the court shall: |
|
|
(1) declare any contract that violates Section |
|
|
53.101(2) void; |
|
|
(2) order the employer to terminate all employment |
|
|
that violates Section 53.101 and all performance under a contract |
|
|
declared void under Subdivision (1); and |
|
|
(3) not later than the third day after the date the |
|
|
court enters the order, file with the county attorney an affidavit |
|
|
stating that the employer: |
|
|
(A) has terminated all employment or contractual |
|
|
performance that violates Section 53.101; and |
|
|
(B) will not intentionally or knowingly violate |
|
|
Section 53.101. |
|
|
(d) If an employer fails to file the affidavit required |
|
|
under Subsection (c)(3) within the prescribed period, the county |
|
|
attorney shall notify the court of the employer's failure to file |
|
|
the affidavit. On receipt of the notification, the court, after |
|
|
notice and hearing, shall order each applicable state agency to |
|
|
suspend, until the date on which the employer files the required |
|
|
affidavit, the following occupational licenses held by the |
|
|
employer: |
|
|
(1) each occupational license held by the employer |
|
|
that is specific to the location where an illegal alien was employed |
|
|
by or performed work for the employer; and |
|
|
(2) if the employer is not required to hold an |
|
|
occupational license described by Subdivision (1), each |
|
|
occupational license held by the employer: |
|
|
(A) at the employer's primary place of business; |
|
|
or |
|
|
(B) as a requirement to engage in a profession or |
|
|
occupation in this state. |
|
|
(e) If an employer files the affidavit required under |
|
|
Subsection (c)(3) after any applicable occupational license held by |
|
|
the employer has been suspended under Subsection (d), the county |
|
|
attorney shall immediately notify the court of the filing of the |
|
|
affidavit. On receipt of the notification, the court shall |
|
|
immediately order each state agency that was ordered to suspend an |
|
|
occupational license under Subsection (d) to reinstate the license, |
|
|
and the agency shall immediately reinstate the license. |
|
|
(f) A court entering an order under this section shall |
|
|
forward a copy of the order to the attorney general. |
|
|
Sec. 53.105. PROBATIONARY REPORTING PERIOD. (a) A court |
|
|
that enters an order under Section 53.104 shall require an employer |
|
|
to file with the county attorney for the period prescribed by |
|
|
Subsection (b) a quarterly report containing the name and work |
|
|
authorization of each employee hired by the employer during the |
|
|
preceding quarter at the location where the illegal alien was |
|
|
employed by or performed work for the employer. |
|
|
(b) A court that requires an employer to make quarterly |
|
|
filings under this section shall require the employer to continue |
|
|
the filings until: |
|
|
(1) the third anniversary of the date on which the |
|
|
court enters an order under Section 53.104, if the court's finding |
|
|
was that the employer knowingly violated Section 53.101; and |
|
|
(2) the fifth anniversary of the date on which the |
|
|
court enters an order under Section 53.104, if the court's finding |
|
|
was that the employer intentionally violated Section 53.101. |
|
|
Sec. 53.106. LICENSE SUSPENSION AND REVOCATION. (a) This |
|
|
section applies to the following occupational licenses held by an |
|
|
employer: |
|
|
(1) each occupational license held by the employer |
|
|
that is specific to the location where an illegal alien was employed |
|
|
by or performed work for the employer; and |
|
|
(2) if the employer is not required to hold an |
|
|
occupational license described by Subdivision (1), each |
|
|
occupational license held by the employer: |
|
|
(A) at the employer's primary place of business; |
|
|
or |
|
|
(B) as a requirement to engage in a profession or |
|
|
occupation in this state. |
|
|
(b) A court that finds that an employer knowingly violated |
|
|
Section 53.101 may order a state agency to suspend, for a period not |
|
|
to exceed 10 days, any applicable occupational license held by the |
|
|
employer. A court that finds that an employer intentionally |
|
|
violated Section 53.101 shall order a state agency to suspend, for a |
|
|
period of at least 10 days, any applicable occupational license |
|
|
held by the employer. |
|
|
(c) In determining whether or for how long to suspend an |
|
|
occupational license held by an employer, the court may consider |
|
|
any fact admitted in evidence during an action brought to enforce |
|
|
Section 53.101 and shall consider: |
|
|
(1) the number of illegal aliens employed by or |
|
|
performing work for the employer; |
|
|
(2) any prior misconduct by the employer; |
|
|
(3) the degree of harm, if any, resulting from the |
|
|
violation of Section 53.101; |
|
|
(4) whether the employer has made good faith attempts |
|
|
to comply with this chapter; |
|
|
(5) the duration of the violation of Section 53.101; |
|
|
and |
|
|
(6) the role, if any, of the employer's directors, |
|
|
officers, or principals in the violation of Section 53.101. |
|
|
(d) If, after the court proceedings described by Section |
|
|
53.104, the court finds that the employer committed the violation |
|
|
of Section 53.101 during or after the completion of a probationary |
|
|
reporting period described by Section 53.105 and at the same |
|
|
business location at which the employer committed the first |
|
|
violation that resulted in the probationary reporting period, the |
|
|
court shall order each applicable state agency to revoke each |
|
|
occupational license held by the employer. The applicable state |
|
|
agency shall revoke the occupational license immediately on receipt |
|
|
of the court's order. |
|
|
Sec. 53.107. REBUTTABLE PRESUMPTION; AFFIRMATIVE DEFENSE. |
|
|
(a) A determination of an alleged illegal alien's immigration |
|
|
status and work authorization made by the federal government in |
|
|
accordance with 8 U.S.C. Section 1373(c) creates a rebuttable |
|
|
presumption of the alleged illegal alien's immigration status and |
|
|
work authorization. |
|
|
(b) Proof that an employer verified the work authorization |
|
|
of an alleged illegal alien through the e-verify program creates a |
|
|
rebuttable presumption that the employer did not intentionally or |
|
|
knowingly violate Section 53.101. |
|
|
(c) It is an affirmative defense to an action brought under |
|
|
Section 53.103 that an employer complied in good faith with the |
|
|
requirements of 8 U.S.C. Section 1324a(b). For purposes of this |
|
|
subsection, an employer's compliance with the requirements of 8 |
|
|
U.S.C. Section 1324a(b) is considered to be in good faith |
|
|
notwithstanding a technical or procedural failure to meet the |
|
|
requirements of 8 U.S.C. Section 1324a(b) if the failure is |
|
|
isolated, sporadic, or accidental in nature. |
|
|
(d) It is an affirmative defense to an action brought under |
|
|
Section 53.103 that the employer was entrapped into violating |
|
|
Section 53.101. An employer asserting an affirmative defense under |
|
|
this subsection must prove, by a preponderance of the evidence, |
|
|
that: |
|
|
(1) a law enforcement officer or an agent of a law |
|
|
enforcement officer introduced the concept of violating Section |
|
|
53.101 to the employer; |
|
|
(2) the law enforcement officer or agent induced the |
|
|
employer to commit the violation of Section 53.101; and |
|
|
(3) the employer was not predisposed to commit the |
|
|
violation before the law enforcement officer or agent took the |
|
|
actions described by Subdivisions (1) and (2). |
|
|
(e) For purposes of Subsection (d): |
|
|
(1) an employer may not prevail on the affirmative |
|
|
defense of entrapment if the employer was predisposed to commit the |
|
|
violation of Section 53.101 and the law enforcement officer or an |
|
|
agent of the law enforcement officer merely provided the employer |
|
|
with the manner or means to commit the violation; |
|
|
(2) entrapping conduct does not include a law |
|
|
enforcement officer or an agent of a law enforcement officer merely |
|
|
using a ruse or concealing the officer or agent's true identity; and |
|
|
(3) the court may consider the conduct of a law |
|
|
enforcement officer or an agent of a law enforcement officer in |
|
|
determining if an employer has proven the affirmative defense of |
|
|
entrapment. |
|
|
Sec. 53.108. POWERS AND DUTIES OF STATE AND LOCAL OFFICIALS |
|
|
IN INVESTIGATION. (a) Except as provided by Subsection (b), a |
|
|
sheriff or other local law enforcement agency may assist the |
|
|
attorney general or a county attorney in the investigation of an |
|
|
alleged violation of Section 53.101. |
|
|
(b) An official of this state or a political subdivision of |
|
|
this state may not attempt independently to determine whether an |
|
|
individual is authorized to work in this country. |
|
|
[Sections 53.109-53.150 reserved for expansion] |
|
|
SUBCHAPTER D. CRIMINAL OFFENSES RELATED TO EMPLOYMENT OF OR |
|
|
PERFORMANCE OF WORK BY ILLEGAL ALIENS |
|
|
Sec. 53.151. HIRING OR CONTRACTING FOR WORK FROM CERTAIN |
|
|
MOTOR VEHICLES. (a) A person commits an offense if, while the |
|
|
person is an occupant of a motor vehicle that is stopped on a |
|
|
street, roadway, or highway and that is blocking or impeding the |
|
|
normal movement of traffic, the person: |
|
|
(1) hires or attempts to hire or contracts or attempts |
|
|
to contract with an individual for the purpose of that individual |
|
|
performing work at another location; and |
|
|
(2) picks up a person described by Subdivision (1) as a |
|
|
passenger in the motor vehicle. |
|
|
(b) A person commits an offense if, for the purpose of being |
|
|
hired by or contracting with an occupant of the motor vehicle to |
|
|
perform work for the occupant at another location, the person |
|
|
enters a motor vehicle that is stopped on a street, roadway, or |
|
|
highway and that is blocking or impeding the normal movement of |
|
|
traffic. |
|
|
(c) An offense under this section is a Class B misdemeanor. |
|
|
Sec. 53.152. APPLICATION FOR AND PERFORMANCE OR |
|
|
SOLICITATION OF WORK PROHIBITED. (a) A person commits an offense if |
|
|
the person is an illegal alien and the person knowingly applies for |
|
|
work in this state, solicits work in this state while in a public |
|
|
place, or performs work in this state as an employee or an |
|
|
independent contractor. |
|
|
(b) An offense under this section is a Class B misdemeanor. |
|
|
Sec. 53.153. ENFORCEMENT AND INVESTIGATION. For purposes |
|
|
of investigating an offense under this subchapter and enforcing |
|
|
this subchapter, a person's immigration status and work |
|
|
authorization may be determined only by: |
|
|
(1) a law enforcement officer of this state who, under |
|
|
federal law, is authorized to verify or ascertain a person's |
|
|
immigration status or work authorization; or |
|
|
(2) a federal law enforcement officer, in accordance |
|
|
with 8 U.S.C. Section 1373(c). |
|
|
SECTION 10. Chapter 20A, Penal Code, is amended by adding |
|
|
Section 20A.03 to read as follows: |
|
|
Sec. 20A.03. UNLAWFUL TRANSPORT OR CONCEALMENT OF ILLEGAL |
|
|
ALIEN. (a) In this section, "illegal alien" means a person who: |
|
|
(1) is not a citizen or national of the United States; |
|
|
and |
|
|
(2) is unlawfully present in the United States |
|
|
according to the terms of the Immigration Reform and Control Act of |
|
|
1986 (8 U.S.C. Section 1101 et seq.). |
|
|
(b) A person commits an offense if the person knowingly or |
|
|
with recklessness as to another person's status as an illegal |
|
|
alien: |
|
|
(1) transports the illegal alien into or through this |
|
|
state in furtherance of the alien's unlawful presence in the United |
|
|
States; |
|
|
(2) conceals or otherwise shields the illegal alien |
|
|
while present in this state from detection by local, state, or |
|
|
federal law enforcement authorities; or |
|
|
(3) solicits or induces the illegal alien to enter or |
|
|
remain in this state. |
|
|
(c) An offense under this section is a Class B misdemeanor |
|
|
with a minimum fine of $1,000, except that the offense is a state |
|
|
jail felony with a fine of $10,000 if 10 or more illegal aliens are |
|
|
transported, concealed or otherwise shielded, or solicited or |
|
|
induced as described by Subsection (b) during the commission of the |
|
|
offense. |
|
|
(d) It is a defense to prosecution under this section that |
|
|
the actor is: |
|
|
(1) an officer or agent of the Department of Family and |
|
|
Protective Services investigating a report of child abuse or |
|
|
neglect under Chapter 261, Family Code; or |
|
|
(2) emergency medical services personnel providing |
|
|
emergency medical services, as those terms are defined by Section |
|
|
773.003, Health and Safety Code. |
|
|
(e) It is a defense to prosecution under Subsection (b)(1) |
|
|
that the offense occurred in the provision of a state or local |
|
|
public benefit described in 8 U.S.C. Section 1621(b). |
|
|
SECTION 11. Chapter 38, Penal Code, is amended by adding |
|
|
Section 38.025 to read as follows: |
|
|
Sec. 38.025. FAILURE TO COMPLETE OR CARRY ALIEN |
|
|
REGISTRATION DOCUMENT. (a) A person commits an offense if the |
|
|
person is in violation of 8 U.S.C. Section 1304(e) or 1306(a). |
|
|
(b) For purposes of this section, a person's immigration |
|
|
status may be verified by: |
|
|
(1) a peace officer or other law enforcement officer |
|
|
of this state who is authorized under federal law to verify or |
|
|
ascertain a person's immigration status; or |
|
|
(2) a federal law enforcement officer, in accordance |
|
|
with 8 U.S.C. Section 1373(c). |
|
|
(c) An offense under this section is a Class B misdemeanor |
|
|
punishable by a maximum fine of $100, except that: |
|
|
(1) a first violation is punishable by not more than 20 |
|
|
days in jail; and |
|
|
(2) a second or subsequent violation is punishable by |
|
|
not more than 30 days in jail. |
|
|
(d) As permitted by Article 42.038, Code of Criminal |
|
|
Procedure, the court may require the defendant to reimburse the |
|
|
county for the cost of any confinement of the defendant in the |
|
|
county jail, in addition to any fine imposed under this section. |
|
|
(e) It is a defense to prosecution under this section that |
|
|
the actor maintains authorization from the federal government to |
|
|
remain in the United States. |
|
|
SECTION 12. Subtitle J, Title 7, Transportation Code, is |
|
|
amended by adding Chapter 731 to read as follows: |
|
|
CHAPTER 731. UNLAWFUL TRANSPORT OR CONCEALMENT OF ILLEGAL ALIENS; |
|
|
IMPOUNDMENT OF MOTOR VEHICLE |
|
|
Sec. 731.001. DEFINITIONS. In this chapter: |
|
|
(1) "Certificate of title" means an instrument issued |
|
|
under Section 501.021. |
|
|
(2) "Owner" has the meaning assigned by Section |
|
|
502.001. |
|
|
(3) "Vehicle registration" has the meaning assigned by |
|
|
Section 601.002. |
|
|
Sec. 731.002. IMPOUNDMENT OF MOTOR VEHICLE. A peace |
|
|
officer shall impound a motor vehicle that the officer has probable |
|
|
cause to believe is being used in the commission of an offense under |
|
|
Section 20A.03, Penal Code. |
|
|
Sec. 731.003. DURATION OF IMPOUNDMENT. The duration of an |
|
|
impoundment under this chapter is 30 days. |
|
|
Sec. 731.004. NOTICE TO OWNER. The law enforcement agency |
|
|
that impounds a motor vehicle under this chapter shall provide |
|
|
notice to the owner of the vehicle in the manner described by |
|
|
Section 2303.151, Occupations Code. |
|
|
Sec. 731.005. COST FOR TOWING AND IMPOUNDMENT. (a) Except |
|
|
as provided by Subsection (b) and subject to Subsection (d), the |
|
|
owner of an impounded motor vehicle is liable for any costs incurred |
|
|
by a law enforcement agency in towing and impounding the vehicle. |
|
|
(b) If the owner of a motor vehicle reported the vehicle |
|
|
stolen to a law enforcement agency before the impoundment of the |
|
|
vehicle, the person who was operating the vehicle at the time the |
|
|
vehicle was impounded is responsible for any costs incurred by a law |
|
|
enforcement agency in towing and impounding the vehicle. |
|
|
(c) The costs incurred by a law enforcement agency in towing |
|
|
and impounding a stolen motor vehicle do not create a lien on the |
|
|
vehicle. |
|
|
(d) The cost for storing a motor vehicle impounded under |
|
|
this chapter may not exceed $15 a day. |
|
|
Sec. 731.006. RELEASE OF IMPOUNDED MOTOR VEHICLE AFTER 30 |
|
|
DAYS. On payment of the costs described by Section 731.005 and the |
|
|
expiration of the 30-day impoundment period, a law enforcement |
|
|
agency that impounds a motor vehicle under this chapter shall |
|
|
release the vehicle to the owner of the vehicle if the owner |
|
|
presents to the law enforcement agency: |
|
|
(1) a driver's license; |
|
|
(2) a certificate of title or vehicle registration; |
|
|
and |
|
|
(3) proof of financial responsibility described by |
|
|
Section 601.051. |
|
|
Sec. 731.007. RELEASE OF IMPOUNDED MOTOR VEHICLE BEFORE 30 |
|
|
DAYS. A law enforcement agency that impounds a motor vehicle under |
|
|
this chapter shall release the vehicle to the owner of the vehicle |
|
|
regardless of whether the 30-day impoundment period has expired if |
|
|
the owner was not the operator of the vehicle at the time of the |
|
|
commission of the offense under Section 20A.03, Penal Code, and the |
|
|
owner presents proof satisfactory to the law enforcement agency |
|
|
that, at that time, the vehicle: |
|
|
(1) was reported stolen to a law enforcement agency; |
|
|
(2) was operated by an employee of the owner who was |
|
|
acting outside the scope of the employee's duties; or |
|
|
(3) was leased to the operator by an owner that holds a |
|
|
license to lease motor vehicles under Chapter 2301, Occupations |
|
|
Code, or that is not required to hold a license under that chapter. |
|
|
Sec. 731.008. ADMINISTRATIVE HEARINGS. (a) The Department |
|
|
of Public Safety, at the request of the owner of a motor vehicle |
|
|
impounded under this chapter, shall hold an administrative hearing |
|
|
to determine if the vehicle was properly impounded. |
|
|
(b) If it is determined at the administrative hearing that |
|
|
the motor vehicle was improperly impounded, the law enforcement |
|
|
agency that impounded the vehicle shall immediately release the |
|
|
vehicle to the owner of the vehicle who requested the hearing. |
|
|
Sec. 731.009. DISPOSAL OF ABANDONED IMPOUNDED VEHICLE. If |
|
|
an owner does not make a claim for a motor vehicle impounded under |
|
|
this chapter before the expiration of the 30-day impoundment |
|
|
period: |
|
|
(1) the vehicle is considered an abandoned vehicle; |
|
|
and |
|
|
(2) the law enforcement agency that impounded the |
|
|
vehicle under this chapter shall dispose of the vehicle in the |
|
|
manner described by Section 683.034. |
|
|
SECTION 13. (a) This state, a political subdivision of this |
|
|
state, and an agency of this state or a political subdivision of |
|
|
this state shall implement the changes in law made by this Act in |
|
|
the manner that: |
|
|
(1) burdens the resources and interferes with the |
|
|
policy priorities of the federal government and agencies of the |
|
|
federal government as little as possible; and |
|
|
(2) is most consistent with federal laws, rules, and |
|
|
regulations regulating immigration and the enforcement of |
|
|
immigration laws by the states. |
|
|
(b) Nothing in this Act may be construed to implement any |
|
|
provision of the REAL ID Act of 2005 (Pub. L. No. 109-13, Div. B) not |
|
|
otherwise implemented by other state law. |
|
|
SECTION 14. Chapter 53, Labor Code, as added by this Act, |
|
|
applies only to a violation that occurs on or after the effective |
|
|
date of this Act. |
|
|
SECTION 15. The attorney general shall prescribe the |
|
|
complaint form described by Section 53.102, Labor Code, as added by |
|
|
this Act, and adopt any rules necessary to implement Chapter 53, |
|
|
Labor Code, as added by this Act, as soon as practicable after the |
|
|
effective date of this Act. |
|
|
SECTION 16. This Act takes effect September 1, 2011. |