By: Perry, et al.  S.B. No. 4
         (In the Senate - Filed November 15, 2016; January 24, 2017,
  read first time and referred to Committee on State Affairs;
  February 3, 2017, reported adversely, with favorable Committee
  Substitute by the following vote:  Yeas 7, Nays 2; February 3, 2017,
  sent to printer.)
Click here to see the committee vote
 
  COMMITTEE SUBSTITUTE FOR S.B. No. 4 By:  Hughes
 
 
A BILL TO BE ENTITLED
 
AN ACT
 
  relating to the enforcement by certain local governmental entities
  and campus police departments of state and federal laws governing
  immigration and to related duties of certain law enforcement and
  judicial entities in the criminal justice system.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Subchapter B, Chapter 101, Civil Practice and
  Remedies Code, is amended by adding Section 101.0216 to read as
  follows:
         Sec. 101.0216.  LIABILITY OF COUNTY OR MUNICIPALITY FOR
  FAILURE TO COMPLY WITH IMMIGRATION DETAINER REQUEST. (a)  A county
  or municipality that releases from custody a person who is the
  subject of an immigration detainer request issued by United States
  Immigration and Customs Enforcement is liable for damages resulting
  from a felony committed by the person in this state within 10 years
  following the person's release if:
               (1)  the county or municipality:
                     (A)  did not detain the person as requested; and
                     (B)  had probable cause to believe that the person
  is not a citizen and is subject to removal from the United States;
  and
               (2)  the person had been convicted before release of an
  offense that is punishable as a Class B misdemeanor or any higher
  category of offense.
         (b)  This section does not create liability for damages that
  a person who is subject to an immigration detainer request sustains
  following the person's release by a county or municipality.
         (c)  Governmental immunity of a county and municipality to
  suit is waived and abolished to the extent of liability created by
  this section.
         SECTION 2.  Chapter 2, Code of Criminal Procedure, is
  amended by adding Articles 2.251 and 2.252 to read as follows:
         Art. 2.251.  ENFORCEMENT OF FEDERAL IMMIGRATION LAW.  (a)  A
  peace officer may not stop a motor vehicle or conduct a search of a
  business or residence solely to enforce a federal law relating to
  aliens, immigrants, or immigration, including the federal
  Immigration and Nationality Act (8 U.S.C. Section 1101 et seq.),
  unless the officer is acting:
               (1)  at the request of, or providing assistance to, an
  appropriate federal law enforcement officer; or
               (2)  under the terms of an agreement between the law
  enforcement agency employing the officer and the federal government
  under which the agency receives delegated authority to enforce
  federal law relating to aliens, immigrants, or immigration.
         (b)  A peace officer may arrest an alien not lawfully present
  in the United States only if the officer is acting under the
  authority granted under Article 2.13.
         Art. 2.252.  DUTIES RELATED TO IMMIGRATION DETAINER
  REQUESTS. (a)  A law enforcement agency that has custody of a
  person subject to an immigration detainer request issued by United
  States Immigration and Customs Enforcement shall comply with,
  honor, and fulfill any request made in the detainer request and in
  any other instrument provided by the federal government.
         (b)  A law enforcement agency shall presume an immigration
  detainer request is based on probable cause and is otherwise valid,
  regardless of whether the detainer request is written or verbal.
         SECTION 3.  Chapter 42, Code of Criminal Procedure, is
  amended by adding Article 42.039 to read as follows:
         Art. 42.039.  COMPLETION OF SENTENCE IN FEDERAL CUSTODY.
  (a)  This article applies only to a criminal case in which:
               (1)  the judgment requires the defendant to be confined
  in a secure correctional facility; and
               (2)  the defendant is subject to an immigration
  detainer request.
         (b)  In a criminal case described by Subsection (a), the
  judge shall, at the time of pronouncement of a sentence of
  confinement, issue an order requiring the secure correctional
  facility in which the defendant is to be confined and all
  appropriate government officers, including a sheriff, a warden, or
  members of the Board of Pardons and Paroles, as appropriate, to
  require the defendant to serve in federal custody the final portion
  of the defendant's sentence, not to exceed a period of seven days,
  following the facility's or officer's determination that the change
  in the place of confinement will facilitate the seamless transfer
  of the defendant into federal custody. In the absence of an order
  issued under this article, a facility or officer acting under
  exigent circumstances may perform the transfer after making the
  determination described by this subsection. This subsection
  applies only if appropriate officers of the federal government
  consent to the transfer of the defendant into federal custody under
  the circumstances described by this subsection.
         (c)  If the applicable information described by Subsection
  (a)(2) is not available at the time sentence is pronounced in the
  case, the judge shall issue the order described by Subsection (b) as
  soon as the information becomes available. The judge retains
  jurisdiction for the purpose of issuing an order under this
  article.
         (d)  For purposes of this article, "secure correctional
  facility" has the meaning assigned by Section 1.07, Penal Code.
         SECTION 4.  Section 22A.001(a), Government Code, is amended
  to read as follows:
         (a)  The attorney general may petition the chief justice of
  the supreme court to convene a special three-judge district court
  in any suit:
               (1)  filed in a district court in this state in which
  this state or a state officer or agency is a defendant in a claim
  that:
                     (A) [(1)]  challenges the finances or operations
  of this state's public school system; or
                     (B) [(2)]  involves the apportionment of
  districts for the house of representatives, the senate, the State
  Board of Education, or the United States Congress, or state
  judicial districts; or
               (2)  involving an alleged violation of Section 752.053
  by a local entity or campus police department of an institution of
  higher education.
         SECTION 5.  Chapter 752, Government Code, is amended by
  adding Subchapter C to read as follows:
 
 
  SUBCHAPTER C. ENFORCEMENT OF STATE AND FEDERAL IMMIGRATION LAWS BY
  LOCAL ENTITIES AND CAMPUS POLICE DEPARTMENTS
         Sec. 752.051.  DEFINITIONS. In this chapter:
               (1)  "Campus police department" means a law enforcement
  agency of an institution of higher education.
               (2)  "Immigration detainer request" means a federal
  government request to a local entity or campus police department to
  maintain temporary custody of an alien. The term includes verbal
  and written requests, including a United States Department of
  Homeland Security Form I-247 document or a similar or successor
  form.
               (3)  "Immigration laws" means the laws of this state or
  federal law relating to aliens, immigrants, or immigration,
  including the federal Immigration and Nationality Act (8 U.S.C.
  Section 1101 et seq.).
               (4)  "Institution of higher education" means:
                     (A)  an institution of higher education as defined
  by Section 61.003, Education Code; or
                     (B)  a private or independent institution of
  higher education as defined by Section 61.003, Education Code.
               (5)  "Lawful detention" means the detention of an
  individual by a local entity or campus police department for the
  investigation of a criminal offense. The term excludes a detention
  if the sole reason for the detention is that the individual:
                     (A)  is a victim of or witness to a criminal
  offense; or
                     (B)  is reporting a criminal offense.
               (6)  "Local entity" means:
                     (A)  the governing body of a municipality, county,
  or special district or authority, subject to Section 752.052;
                     (B)  an officer or employee of or a division,
  department, or other body that is part of a municipality, county, or
  special district or authority, including a sheriff, municipal
  police department, municipal attorney, or county attorney; and
                     (C)  a district attorney or criminal district
  attorney.
               (7)  "Policy" includes a formal, written rule, order,
  ordinance, or policy and an informal, unwritten policy.
         Sec. 752.052.  APPLICABILITY OF CHAPTER. (a)  This chapter
  does not apply to a school district or open-enrollment charter
  school. This chapter does not apply to the release of information
  contained in education records of an educational agency or
  institution, except in conformity with the Family Educational
  Rights and Privacy Act of 1974 (20 U.S.C. Section 1232g).
         (b)  Subject to Subsection (c), this chapter does not apply
  to a hospital or hospital district created under Subtitle C or D,
  Title 4, Health and Safety Code, or a hospital district created
  under a general or special law authorized by Article IX, Texas
  Constitution, to the extent that the hospital or hospital district
  is providing access to or delivering medical or health care
  services as required under the following applicable federal or
  state laws:
               (1)  42 U.S.C. Section 1395dd;
               (2)  42 U.S.C. Section 1396b(v);
               (3)  Subchapter C, Chapter 61, Health and Safety Code;
               (4)  Chapter 81, Health and Safety Code; and
               (5)  Section 311.022, Health and Safety Code.
         (c)  Subsection (b) does not exclude the application of this
  chapter to a commissioned peace officer employed by or commissioned
  by a hospital or hospital district otherwise subject to Subsection
  (b).
         Sec. 752.053.  POLICY REGARDING IMMIGRATION ENFORCEMENT.
  (a)  A local entity or campus police department shall not:
               (1)  adopt, enforce, or endorse a policy under which
  the entity or department prohibits or discourages the enforcement
  of immigration laws; or
               (2)  by consistent actions prohibit or discourage the
  enforcement of immigration laws.
         (b)  In compliance with Subsection (a), a local entity or
  campus police department shall not prohibit or discourage a person
  who is a commissioned peace officer described by Article 2.12, Code
  of Criminal Procedure, a corrections officer, a booking clerk, a
  magistrate, or a district attorney, criminal district attorney, or
  other prosecuting attorney and who is employed by or otherwise
  under the direction or control of the entity or department from
  doing any of the following:
               (1)  inquiring into the immigration status of a person
  under a lawful detention or under arrest;
               (2)  with respect to information relating to the
  immigration status, lawful or unlawful, of any person under a
  lawful detention or under arrest, including information regarding
  the person's place of birth:
                     (A)  sending the information to or requesting or
  receiving the information from United States Citizenship and
  Immigration Services, United States Immigration and Customs
  Enforcement, or another relevant federal agency;
                     (B)  maintaining the information; or
                     (C)  exchanging the information with another
  local entity or campus police department or a federal or state
  governmental entity;
               (3)  assisting or cooperating with a federal
  immigration officer as reasonable or necessary, including
  providing enforcement assistance; or
               (4)  permitting a federal immigration officer to enter
  and conduct enforcement activities at a jail to enforce federal
  immigration laws.
         Sec. 752.054.  DISCRIMINATION PROHIBITED. A local entity, a
  campus police department, or a person employed by or otherwise
  under the direction or control of the entity or department may not
  consider race, color, language, or national origin while enforcing
  immigration laws except to the extent permitted by the United
  States Constitution or Texas Constitution.
         Sec. 752.055.  COMPLAINT; EQUITABLE RELIEF. (a)  Any
  person, including the federal government, may file a complaint with
  the attorney general if the person offers evidence to support an
  allegation that a local entity or campus police department is
  violating Section 752.053. The person must include with the
  complaint the evidence the person has that supports the complaint.
         (b)  A local entity or campus police department for which the
  attorney general has received a complaint under Subsection (a)
  shall comply with a document request, including a request for
  supporting documents, from the attorney general related to the
  complaint.
         (c)  If the attorney general determines that a complaint
  filed under Subsection (a) against a local entity or campus police
  department is valid, the attorney general shall, not later than the
  10th day after the date of the determination, provide written
  notification to the entity or department that:
               (1)  the complaint has been filed;
               (2)  the attorney general has determined that the
  complaint is valid;
               (3)  the attorney general is authorized to file an
  action to enjoin the violation if the entity or department does not
  come into compliance with the requirements of Section 752.053 on or
  before the 90th day after the date the notification is provided; and
               (4)  the entity and each entity that is under the
  jurisdiction of the local entity or department will be denied state
  grant funds for the state fiscal year following the year in which a
  final judicial determination in an action brought under Subsection
  (e) is made.
         (d)  Not later than the 30th day after the day a local entity
  or campus police department receives written notification under
  Subsection (c), the entity or department shall provide the attorney
  general with a copy of:
               (1)  the entity's or department's written policies
  related to immigration enforcement actions;
               (2)  each immigration detainer request received by the
  entity or department from the United States Department of Homeland
  Security; and
               (3)  each response sent by the entity or department for
  a detainer request described by Subdivision (2).
         (e)  If the attorney general determines that a complaint
  filed under Subsection (a) is valid, the attorney general may
  petition the chief justice of the supreme court to convene the
  special three-judge district court described by Chapter 22A to hear
  a petition for a writ of mandamus or other appropriate equitable
  relief to compel the local entity or campus police department that
  is violating Section 752.053 to comply with that section.  The court
  shall be convened in Travis County or the county in which the
  principal office of the entity or department is located. The
  attorney general may recover reasonable expenses incurred in
  obtaining relief under this subsection, including court costs,
  reasonable attorney's fees, investigative costs, witness fees, and
  deposition costs.
         (f)  An appeal of a suit brought under Subsection (e) is
  governed by the procedures for accelerated appeals in civil cases
  under the Texas Rules of Appellate Procedure.  The appellate court
  shall render its final order or judgment with the least possible
  delay.
         Sec. 752.056.  DENIAL OF STATE GRANT FUNDS; DATABASE.
  (a)  A local entity, including each entity under the jurisdiction
  of the local entity, or a campus police department may not receive
  state grant funds if the local entity or department violates
  Section 752.053.
         (b)  Except as provided by Subsection (c), state grant funds
  for a local entity or campus police department shall be denied
  beginning with the state fiscal year following the year in which a
  final judicial determination in an action brought under Section
  752.055 is made that the local entity or department has
  intentionally violated Section 752.053.  State grant funds shall
  continue to be denied until reinstated under Section 752.057.
         (c)  State grant funds for the provision of wearable body
  protective gear used for law enforcement purposes may not be denied
  under this section.
         (d)  The comptroller shall adopt rules to implement this
  section uniformly among the state agencies from which state grant
  funds are distributed to local entities and campus police
  departments.
         (e)  The attorney general shall develop and maintain a
  database listing each local entity and campus police department for
  which a final judicial determination described by Subsection (b)
  has been made. The attorney general shall post the database on the
  attorney general's Internet website.
         Sec. 752.057.  REINSTATEMENT OF STATE GRANT FUNDS.
  (a)  Except as provided by Subsection (b), not earlier than the
  first anniversary of the date of a final judicial determination
  that a local entity or campus police department has intentionally
  violated Section 752.053, the entity or department may petition the
  chief justice of the supreme court to convene the special
  three-judge district court described by Chapter 22A to hear an
  action against the attorney general seeking a declaratory judgment
  regarding the entity's or department's compliance with Section
  752.053.
         (b)  A local entity or campus police department may petition
  for the reinstatement of state grant funds under Subsection (a)
  before the date described by that subsection if the person who was
  the chief executive of the entity or department at the time of the
  violation of Section 752.053 is removed from office.
         (c)  A local entity or campus police department that brings
  an action described by Subsection (a) shall comply with a document
  request, including a request for supporting documents, from the
  attorney general related to the action.
         (d)  If the court renders a declaratory judgment declaring
  that the local entity or campus police department is in compliance
  with Section 752.053, state grant funds for the entity or
  department shall be reinstated beginning with the first day of the
  month following the month in which the declaratory judgment was
  rendered.
         (e)  A local entity or campus police department may not bring
  an action described by Subsection (a) more than twice in one
  12-month period.
         (f)  A party is not entitled to recover any attorney's fees
  in an action described by Subsection (a).
         SECTION 6.  It is the intent of the legislature that every
  provision, section, subsection, sentence, clause, phrase, or word
  in this Act, and every application of the provisions in this Act to
  each person or entity, are severable from each other.  If any
  application of any provision in this Act to any person, group of
  persons, or circumstances is found by a court to be invalid for any
  reason, the remaining applications of that provision to all other
  persons and circumstances shall be severed and may not be affected.
         SECTION 7.  Not later than January 1, 2018, each law
  enforcement agency subject to this Act shall:
               (1)  formalize in writing any unwritten, informal
  policies relating to the enforcement of immigration laws; and
               (2)  update the agency's policies to be consistent with
  this Act and to include:
                     (A)  provisions prohibiting an agency officer or
  employee from preventing agency personnel from taking immigration
  enforcement actions described by Section 752.053, Government Code,
  as added by this Act; and
                     (B)  provisions requiring each agency officer or
  employee to comply with Articles 2.251 and 2.252, Code of Criminal
  Procedure, as added by this Act, if applicable.
         SECTION 8.  Section 101.0216, Civil Practice and Remedies
  Code, as added by this Act, applies only with respect to the release
  of a person from custody on or after the effective date of this Act.
         SECTION 9.  This Act takes effect immediately if it receives
  a vote of two-thirds of all the members elected to each house, as
  provided by Section 39, Article III, Texas Constitution.  If this
  Act does not receive the vote necessary for immediate effect, this
  Act takes effect September 1, 2017.
 
  * * * * *