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The House Committee on State Affairs met on December 10, 2015 to discuss and hear invited testimony on the following interim charge:
 
Examine state and local laws applicable to undocumented immigrants throughout the State of Texas and analyze the effects of those laws in conjunction with federal immigration laws and the policies and practices followed by U.S. Immigration and Customs Enforcement.
 
Steve McCraw, Texas Department of Public Safety

  • DPS works with other agencies, both state and federal, to protect Texas from criminal aliens
  • Criminal aliens commit homicide, robbery, sexual assault, etc.
  • There is a Texas and a national fingerprint database at our disposal through Immigration and Customs Enforcement (ICE)
  • We will continue to work to keep Texas safe
  • Chair Cook says HB 1888 (Capriglione, Relating to commercial driver's licenses and commercial learner's permits and the operation of commercial motor vehicles; authorizing a fee; increasing a penalty.)  that took away the use of 10 point fingerprints with respect to driver’s licenses and asks McCraw about this
    • McCraw says name based checks are woefully inaccurate
    • The best way ensure somebody’s identity, is by using biometrics
    • There is a balance between safety and privacy, but fingerprints are very important to us
      • We have a latent finger print database from committed crimes – when we match the finger prints, we know we have the perpetrator
    • Ten print finger prints leaves no doubt on somebody’s identity
    • People often buy drivers licenses for up to $10,000, so they are not always accurate
    • We have lost a valuable tool
  • Rep. Giddings asks how many other states have the 10 print fingerprints at their disposal
    • I can get back to you at some point
    • We were leading the crowd when we started using them, but we are now probably in the minority
  • Rep. Huberty asks for an update on border security since the 84th
    • There is an increase in unaccompanied children coming over the border
    • This impacts  HHS more than anybody
    • We have 80 troopers already on the border, and there are another 100 about to graduate half of which will also head to the border
    • We’ve increased air assets as well as 3000 cameras
    • Direct communication between troopers and Border Patrol agents has been very important
  • Rep. Geren asks about the two groups of minors being moved by the federal government
    • These minors are in the hands of the federal government
    • The minors typically turn themselves in as soon as they cross the border because we cannot send them back because they belong to Border Patrol
    • Immigration is a federal statute, but we take an oath to fulfill the federal law
  • Chair Cook asks who has the legal authority to detain a person based on immigration violation
    • There is no state violation of immigration
    • If there is reasonable suspicion or probable cause that the person is here illegally, we detain them (we do not take them to jail) and call ICE
  • Chair Cook reiterates that the use of fingerprints was one of the most important tools for DPS
    • McCraw feels he failed in properly educating the legislature on how important the fingerprints were to DPS
  • Chair Cook says this is his opportunity to educate the legislature
    • 80 other state agencies can use it, but it took away one of our most valuable tools
    • It does not say somebody is a criminal – it tells us who somebody is
    • Now bad guys can get a driver’s license more easily without fingerprints
  • Rep. Giddings says it is her understanding that we did nothing with the ten print fingerprints when we had them
    • There is not a particular crime we solved by using them
    • By the time we were rolling out the ten point fingerprints, it was too late and their use was taken away
    • We destroyed the finger prints collected once the bill was finally passed
  • Rep. Giddings says we are not completely name based because we also have thumb prints
    • We now have to create a brand new database for just thumb prints, so right now we really are name based

 
Brantley Star, Attorney General’s Office

  • Only the federal government can enforce immigration laws
  • Supreme Court has said Federal Government can speak with one voice in immigration
  • The one law that survived Supreme Court’s scrutiny of Arizona laws was allowing the detention of somebody with probable cause that they were here illegally “show me your papers law”
  • Federal government can ask for cooperation from the states, but it cannot demand their cooperation
    • State and local authorities can do less than the federal government, but they cannot do more
  • Sanctuary City could mean either
    • There is prohibition of official acting to apprehend somebody pre arrest or
    • Policy prohibits interaction with federal government post arrest
  • This does not have to be spoken or written necessarily
  • The 2011 state legislation regarding Sanctuary Cities fits within legal framework is one option
  • There is also a bottom up approach like the “show me your papers” law that could also work
  • Reporting requirements are another option by asking cities to report their actions
  • Rep. Geren says we are not allowed to ask immigration status of any students; for a district that has its own police force, how would it affect them
    • This would be a necessary carve out as well as a carve out for hospitals if we take up a sanctuary cities bill
  • Rep. Huberty reiterates that we cannot go above their policies; they say federal government is can speak with one voice, but they are not speaking, they are whispering; if we implement something above and beyond what the feds do, is that unconstitutional?
    • It depends – you can require the local entity to reach out to the federal government when practicable, even if you know the federal government will probably not comply
  • Rep. Huberty says if the federal government is not doing what they are supposed to do, why can we not provide laws above and beyond what they are doing – they are not enforcing their own laws
    • You can create state laws with immigration elements, but they cannot too closely relate to the federal law
    • The state laws have to have sufficiently unique elements
  • Rep. Huberty asks if we can make it illegal in Texas for somebody to be here illegally
    • That was struck down in Arizona because it was not sufficiently unique
  • Rep. Farrar points out that being here illegally is not a state offense, and it is a civil offense, not criminal
  • Rep. Huberty says if the federal law is a civil offense, could we create a criminal offense?
    • No, this is still not sufficiently unique – this was stuck down in Arizona as well

 
Jacquline Watson, American Immigration Lawyers Association

  • Will go over federal immigration laws
  • PEP notification system works exactly like SCOM did
    • Fingerprints sent to FBI who turns them over to ICE
    • If anything comes up, ICE notifies local authorities
    • Local authorities can hold for up to 48 hours; they can hold longer if they receive a notification request from ICE or if ICE comes to pick them up
  • Undocumented minors can still be removed by this country, but they are and this is happens quite often
  • Chair Cook asks how this determination is made
    • Interviewed by ICE officer
    • Determination is made as to alienage
      • Civil process is better because there is a lower burden of proof
    • If the person articulates credible fear, they are interviewed to apply for asylum
  • “Show your papers” law – there were two sections, one survived and one did not
    • Section 6 said officer may arrest somebody without a warrant if there is reason (probable cause) to believe they are here illegally – this was struck down
    • 2B said a state officer is required to make a reasonable attempt to see if they are here illegally if they commit another legitimate offense – this still stands, but could be challenged in the Supreme Court
  • Of deportations in the United States, the greatest number come from Texas
  • Even under PEP, in the first month of FY 2016, Texas had the highest number of detainers issued
    • It appears Texas is sufficiently complying
  • When we look at the impact on tax payers, undocumented and mixed families pay taxes
  • Rep. Huberty says we have one of the poorest borders, so we get the most illegal immigrants
    • Yes, the size of the border could have an effect on this
  • Rep. Huberty asks if they think that most undocumented citizens pay their taxes
    • Not all, but maybe not all citizens are either
  • Rep. Farrar says that a large part of our state budget comes from the sales tax, and everybody pays that – everybody pays property tax as well even if they rent
  • Rep. Farney says schools to ask for documentation, but if an illegal immigrant interacts with a state agency, do they have to declare that they are here illegally? What about with federal income tax?
    • There is nothing in the federal income tax that asks
    • Farney asks where data that undocumented citizens pay taxes comes from if nobody asks
    • Watson says she knows some do and that polls say some do
  • Rep. Minjarez says that proving burden of proof for criminal laws, and jails would probably be overpopulated if this was changed to a criminal charge with tax payers holding the burden
  • Rep. Huberty says we spent $800 million for border security – sometimes we have to spend money to keep our state safe

 
Lupe Valdez, Dallas County Sheriff

  • Legislation that is being discussed would be difficult for many reasons
  • We have the 7th largest jail in the country, and we have a lot of people
  • We all want justice and accountability
  • There is no true figure of how many undocumented people are in North Texas
  • Numbers have been estimated between 40,000 to 1,000,000
    • We would add between 4,000 and 100,000 people if we picked up just 10% of these people each year
  • We cannot afford new jails or employees – millions of dollars just for the first day of holding these people, not including training
  • We can only hold about 7500 inmates, but Dallas police officers arrest over 50,000 a year
  • Many industries and employers would be hurt by legislation
  • $6.3 billion is estimated in sales tax by undocumented citizens per year
  • There is no such thing as ICE on demand – it takes time; jail is for people we are afraid of, not people we don’t like
  • There are many undocumented citizens with Anglo Saxon origins, but Hispanic looking people will be unfairly targeted when we go after undocumented people
  • We should not question who somebody is unless they have committed a crime
  • Rep. Cook says there has been concern about the department’s decision to use discretion with regards to detainer request
    • Valdez says this is a rumor that has spread
    • No detainers have been refused
    • I believe the case by case situation came when we met with ICE to discuss how we would handle this going forward – ICE said they have sometimes asked for somebody who has been stopped for a stop sign violation, which I was uncomfortable with, but then they said they will only ask if they have more information on this person and THAT is when I say it is case by case
    • A run stop sign would not get ICE’s attention, unless they know something else
    • 48 Hours are for ICE to get transportation
  • Rep. Farney says that people here illegally do not commit crimes any more than people born here, what is that founded on?
    • They commit under 2% of the crimes
  • Rep. Giddings asks which federal department Valdez worked with
    • Department of Homeland Security
  • Rep. Giddings says it is important to note that all ICE detainers have been honored – Valdez is also being sued for being too difficult on illegal immigrants
  • Valdez says ICE’s priorities have changed and we have always complied
  • Rep. Huberty asks why Valdez thinks we should not have laws like this; maybe she is following the law, but what about people who are not?
    • Valdez says that is not for her to answer
    • Somebody should have asked ICE if we were following along with them
  • Rep. Huberty asks if Valdez would be supportive of the bill if money was provided
    • Valdez says her issue is with going after a targeted group because it is harmful to the community
  • Rep. Giddings asks Chair Cook why we didn’t go to ICE
    • Chair Cook says we did go to ICE and they said that currently all counties are complying with requests

 
AJ Lauderback, Jackson County Sheriff, Sheriffs Association of Texas

  • We need a clear law to get rid of ambiguity, so peace officers can conduct business on the same page
  • There should be a consistent approach
  • Chair Cook says the Sheriff Association should lock themselves in a room and bring us the laws they need in place because they have more law enforcement expertise
    • Sheriffs are here to enforce the law, but the federal law is not a simple process
    • The procedures we have today will work under PEP – we are not fans of the program, however because it has such a narrow scope that it allows a lot of criminals to run loose
  • Chair Cook reiterates the need to have Sheriffs tell us what we need to keep Texas safe
    • We will do that and be available

 
Clint McDonald, Terrell County Sheriff, Texas Border Sheriffs Coalition

  • Our border is the largest and is all privately held land
  • We are down Border Patrol agents right now – our border is wide open
  • We have no police department to protect our county; it is so small we cannot even set a jury and we have had criminal aliens plead out
  • We have the laws, but the enforcement policies are not effective
  • Rep. Giddings asks where the DPS officers in his county are if we just put so much money into border security – have you ever requested it, and what happened?
    • Yes I have requested it – there are not DPS officers close enough, so if we DPS can’t help if we stop somebody
    • They said a trooper will be placed in my county, but the Border Patrol is trying to get that trooper
    • Money was taken away from sheriffs and given to DPS for troopers that do not do much in his county
  • Border sheriffs need to have a seat at the table when these conversations are had
  • Rep. Huberty asks if McDonald believes there is need for clarifying legislation
    • Yes

 
Michael Durden, Houston Police Department

  • HPD wants to make sure any legislation to come forward will address police officer needs
  • Local police do not have jurisdiction to enforce federal immigration laws – they are civil in nature
  • It would be a mistake to pass any laws requiring police officers to enforce immigration laws as a criminal charge
  • Probable cause and reasonable suspicion to stop somebody, it can be appropriate for a police officer to ask if somebody is here legally as long as they have been legally detained for breaking another law
  • There should be clear guidance regarding how people came into this country – a student with an expired student visa would be treated the same way as somebody who never got a visa, but it should not be that way
  • Chair Cook asks about order 500-5
    • 500-5 was passed in 1992 and says Houston police officers will not detain somebody solely because they believe they are here unlawfully
    • Police officers are required to check the warrant status, which goes above and beyond just asking for immigration status, for anybody who is lawfully detained
    • Whenever an officer has somebody lawfully detained for any reason, it is within the sound discretion of that police officer to decide whether they should check that person’s immigration status

 
Dee Anderson, Sheriff of Tarrant County

  • Many sheriffs are in full support of Gov. Abbott’s initiative to strengthen what exists
  • Tarrant county has a relationship with ICE where there is a full time ICE agent in Tarrant County Jail to determine who may or may not be in the country legally
  • There should be discussion about small counties with overcrowded jails who are forced to release people with ICE detainers because of space in jails
    • Some sheriffs will allow deportation to take place which is a get out of jail free card for even somebody on a small charge
    • They bond out and disappear across the border
  • Deportation does not serve justice because they often turn around and come right back across the border
  • The border needs to be secured by not only the federal government but by police departments, border sheriffs, etc.
  • Rep. Geren agrees that incarceration is an important tool because deportation is not working

 
Jerry McGinty – Texas Department of Criminal Justice

  • Federal funding for incarceration of criminal aliens has fallen drastically – we spend $131 million but only get $8 million back from the federal government