After nearly 16 hours of debate and tearful pleas from legislators, Texas became the first state to pass a bill that creates criminal penalties for law enforcement officers who do not honor Immigration and Customs Enforcement requests to hold people in local jails. Senate Bill 4 passed the Texas House at 3 a.m. local time Thursday, along party lines.
The law makes it a criminal offense not to comply with ICE “detainer requests,” where those suspected of being undocumented immigrants can be held for up to 48 hours in local facilities so ICE officers can pick them up.
The bill was hurried through the Legislature after Gov. Greg Abbott made eliminating sanctuary cities — a loose term for jurisdictions that limit cooperation with ICE — an emergency item in his State of the State address in late January.
“Elected officials don’t get to pick and choose which laws they obey,” he said to loud applause. “To protect Texans from deadly danger, we must insist that laws be followed.”
Abbott was referring to officials like Travis County Sheriff Sally Hernandez, elected in November 2016, who announced in January that her office would not cooperate with ICE detainer requests unless the suspect was charged with a serious felony. Travis County includes Austin.
The bill allows Sheriff Hernandez to be charged with a Class A misdemeanor for not complying with detainers, the most serious misdemeanor category in Texas.
Texas Senator Charles Perry (R-Lubbock), who carried the bill through the Senate, said policies like the one in Travis County are a threat to public safety.
“Some jurisdictions don’t enforce all ICE detainers, releasing people that neither you or I would want next to our kids,” Perry told VICE News on Wednesday. “They are creating an instability in our system when there’s an option to lock them up and deport them.”
In 2014, the Third Circuit Court of Appeals held that ICE detainers are requests and therefore voluntary. But Texas is in the Fifth Circuit, and Perry said they are not bound by the court’s ruling.
“We’re going to hold tight until we are directed to do something different,” Perry said.
Harris County Sheriff Ed Gonzalez, whose jurisdiction includes Houston, spoke at a large rally outside the capitol Wednesday morning urging legislators to vote against SB4. “This is not the Texas we should aspire to be, this is not the America we believe in,” he said. Representatives from the Dallas and Bexar County Sheriff’s Departments were also at the rally. Opponents of SB4 dressed in all black.
Rep. Charlie Geren (R-Fort Worth) defended the bill throughout the day. SB4 “upholds the rule of law and allows law enforcement officers to keep the public safe and remove bad people from our streets,” he said during Wednesday’s debate.
But Texas declined just 146 ICE detainers between January 2014 and September 2015, according to the Texas Tribune, compared to 11,171 in California and 1,108 in Florida. In a passionate speech Rep. Rafael Anchia (D-Dallas) said this policy is unnecessary and racist.
“What is this about? It’s not about ICE detainers. It’s not really about crime data,” he said. “If you have succeeded in anything, you have succeeded in terrifying an entire community.”
After a two hour session break in the late afternoon, undocumented immigrants and community activists gathered in the Capitol’s rotunda chanting “Undocumented, unafraid!” But their cries were not enough to stop the Republican majority and the eventual 93-54 vote.
Opponents of the legislation are concerned that people who would have otherwise been released on bail or not arrested at all will spend time in jail unlawfully under the mandate. In January 2017, the U.S. District Court in Dallas allowed a case involving plaintiffs who were held on ICE detainers after they had otherwise been cleared for release to go forward saying Dallas could be held liable for unlawful detention under the Fourth Amendment.
“It’s a very slippery slope to violate people’s rights,” said Angie Junck, Supervising Attorney at the Immigrant Legal Resource Center. “They get deported and then there’s no recourse.”
Opponents say SB4 puts everyone at risk of unlawful detention, not just immigrants. From 2008 to 2012 ICE detainers were mistakenly issued for 834 U.S. Citizens, including 83 in Texas.
In response to questions from Texas House democrats about this risk, Rep. Geren said, “they may just get to stay in jail a little bit longer.”
Proponents of the legislation say it provides clarity to law enforcement officers by eliminating discretion. Four term Jackson County Sheriff A. J. Louderback is all for it.
“If you don’t put something in place, anyone could start down the path of not honoring detainers, leading down the path of chaos and inconsistency,” Louderback told Vice News. “We’re in law enforcement, first word law.”