The Senate Committee on Border Security met on October 10 to take up & vote out the following bills:
- SB 4 (Flores) Relating to the punishment for certain criminal conduct involving the smuggling of persons or the operation of a stash house
- SB 11 (Birdwell) Relating to the creation of the criminal offense of improper entry from a foreign nation.
SB 4 was voted out unanimously and SB 11 was voted out (3-2). A video archive of the hearing is available here.
This report is intended to give you an overview and highlight the various topics taken up. It is not a verbatim transcript of the discussions but is based upon what was audible or understandable to the observer.
Opening Statements
Steve McCraw, DPS
- Cartels have taken over the drug market in the United States
- Cartels don’t care that they are poisoning people with fentanyl
- Highlights the lethality of fentanyl; fentanyl overdoses are on the rise
- Our concern is that border patrol will become a processing agency instead of a law enforcement agency
- If catch and release is the remedy, more illegal immigrants will come
- DPS 374 stash houses discovered and rescued 338 people
- 151 individuals on terrorist watch list have been caught on the border
- Most people that we arrest are primarily smugglers
- TDCJ stepped up
- Texas State legislature has done more to address this crisis than congress
- 140,000 immigrants a month due to catch & release
- President Obama said they couldn’t handle anymore when there was 500,000 people crossing a year & now we are up to 1.4 million a year
Discussion:
- Blanco – There are 8 to 9 hour wait times on bridges in El Paso and $1.9 billion of goods delayed, why is this happening and what options are available
- McCraw – El Paso leads all border patrol sectors. Cartels exploit the bridges and Chihuahua is not cooperating. These inspections are done for safety purposes so they have to be done. Public order should always be kept in mind
- Blanco – These are traffic safety related instead of drug related
- McCraw – yes, when cartels know we are doing full inspections they will not cross. We are not here to hurt the community and we recognize how much of an impact traffic through the border checkpoints has on local economy
- Blanco – vehicle inspection checkpoints have increase because of human trafficking
- McCraw – yes you could say that, but mainly because of public safety and traffic safety
- Blanco – You mentioned cooperation with Mexican counterparts and what communications is had with Chihuahua?
- McCraw – Joe Sanchez has relations with Chihuahua its not the same type of cooperation as in Coahuila and we have evidence they are helping migrants.
- Blanco – All other states have been more cooperative than chihuahua?
- McCraw – Correct
- Blanco – No drugs have been found crossing the bridge this year?
- McCraw – it has mostly been found on the roadways in Texas
- Hinojosa – There is an increase in human smuggling and stash houses are huge problem, Do you have authority to forfeit a house being used as a stash house?
- McCraw – Yes, we do, but most of the time it’s a rental or been abandoned. 33,338 people have been found in these stash houses
- Hinojosa –Are DPS mandatory or voluntary?
- McCraw – We are looking for volunteers, for sustainability we are sending people down for 10 hours a week
- Hinojosa – are you getting complaints from rural communities on lack of help?
- McCraw – all sheriffs want more troopers
- Hinojosa -How is moral for DPS?
- McCraw – I always worry about over committing and I have moral in mind. Having it on a volunteer basis is great and we give them overtime.
- Hinojosa – It is also important to keep salaries competitive
- King – Do you give them to border patrol?
- McCraw – yes we call border patrol and hand them over.
- King – how long does that take to process them?
- McCraw – We are able to move them through the system efficiently
- King – what about misdemeanor crimes?
- McCraw – they go through normal criminal prosecution
- King – are we transporting them to ICE?
- McCraw – Yes
- King – Tell me about the buoys?
- McCraw – We are hopeful they will stay up
- King – what did it cost to deploy the buoys?
- McCraw- $800,000
- Birdwell –Given how long the operation has gone on do we have enough detention facilities to keep up?
- McCraw – there will always be a max capacity, as long as we have a global migration event we will continue to be overwhelmed especially pertaining to smugglers
- Blanco – On the buoys how much communication has been done with Mexico?
- McCraw – not much, we don’t want to mess with Mexico
- Blanco – was there surveying to make sure it is not in Mexico?
- McCraw – They are mobile so if there was a problem we would just pull them closer to the US
- Blanco – No federal approval before placing the buoys
- McCraw – Correct
SB 4 (Flores) Relating to the punishment for certain criminal conduct involving the smuggling of persons or the operation of a stash house; increasing criminal penalties.
Sen. Pete Flores
- We have seen how migrants have been exploited for profit
- The intent of this legislation is to go after those profiting off of innocent people
- Increased penalties for smuggling and stash house operation
- Increased the offense of smuggling and continuous smuggling to a 3rd degree felony with minimum of 10 year sentence
- Lower minimum sentence to 5 years with individuals who cooperate with law enforcement
- Operating a stash house is a minimum 5 year term, but if used for smuggling it is raised to a 3rd degree felony and sentence would rise to 10 years if operated in a disaster area
- Resisting arrest, assault, burglary, and evading arrest raised to a 3rd degree felony and stackable sentencing
- Amend 20.01 of penial code by adding a definition for park, natural area, and cultural area as defined by parks and wildlife code
- The punishment for smuggling can be reduced to a 3rd degree felony with a minimum sentence of 5 years for family members within the 3rd degree consanguinity or affinity
- It will change effective date to December 1st if 2/3 of chamber approve instead of 91st day after special session
- Senate Bill 4 will hold smugglers accountable and not the people rendering aide
Discussion:
- Birdwell – Will you lay out the practical application of 3rd degree felony consanguinity, walk us what that means?
- Flores – This is not to create a cousin smuggling network. Officers in the field will present evidence to prosecute and prove beyond a reasonable doubt. We have precedence in chapter 38 and misrepresenting a child’s age. The punishment part comes at the end.
- Hinojosa – This is not a shotgun approach to this issue. It protects grandma taking her kids to church and they happen to be undocumented. The issue is an affirmative defense that comes at the punishment phase. The burden is on the defense.
- Birdwell – 3rd degree of consanguinity is a factor in mitigation to make consequence lesser than it would’ve been if they were not blood relation
Panel:
Tonya Ahlschwede, District Attorney
- King – give me an example of where this would be applied?
- Alschwede – This amendment would expand the scope of consanguinity. We have had cases were someone on the side of the road says these people are family members. Later we can view documentation presented by the defense attorney to pass judgment.
- King – what if someone claims that this is their cousin?
- Alschwede – The officer writes up a report and send it to us and we make a decision about whether that case is going to be charged and if we don’t have any other documentation that comes in that person can be charged with. And once trial is underway the defense attorney can bring in the documentation.
- King – What if someone brings in 10 people that are there cousins how do we distinguish that from a group of non-cousins?
- Alschwede – Those will be proof issues for prosecutor and a lot of times we don’t have any other documentation than what was told to the officer at the scene.
- King – are you getting cases like these?
- Alschwede – yes we are. We have also have had smuggled individuals and family members in the same groups
- King – that’s what I’m trying to distinguish
- Alschwede – its very proof specific
- King – do you ever resort to DNA testing
- Alschwede – we have not yet but we have discussed it
- Flores – First cousins don’t apply. Furthest it goes is Grandparent.
- Flores – it’s a 2-10 year sentence currently for smuggling. 1st and 2nd degree is an affirmative defense. This amendment expands the scope of consanguinity but does not make it an affirmative defense. The attempt of SB 4 is to increase the penalty. This would raise it to a 5-10 year sentence.
- King – Tell me if I get this right. Current law for smuggling is 2- 10 years but there is an affirmative defense if you are within the 1st or 2nd degree of affinity or consanguinity?
- Alschwede – correct
- King – SB 4 as originally filed would have raised that 2-10 to 5-10 nothing else would have changed? What about the committee sub?
- Alschwede – The committee substitute would say the 1st and degree of consanguinity would still have an affirmative defense, but the 3rd degree instead of the minimum being 10 years it would be 5 years. Anybody convicted not within the 1st, 2nd, or 3rd degree phases a minimum of 10 years for each count?
- Blanco – the individual with 3rd degree consanguinity could get 10 years?
- Alschwede – Correct
Public Testimony
Lauren Johnson, ACLU of Texas
- Mandatory minimums are terrible for stopping crimes
- Should remove judicial safety valve
Jimmy Fullen, Chief Deputy Galveston County
- Proud of the work Texas Law enforcement has done; SB 4 is a much needed deterrent
- The crisis at the southern border affects the whole state
Bob Libal, Human Rights Watch
- Asks to oppose SB 4
- Operation Lone Star is a failure and waste of money
- This is an extreme sentence for a non-violent offense
- Overwhelmingly young Texans are being affected by this
Kareem Martinez, Self
- Cartels are becoming more armed and powerful
- It is creating violence on the border of Texas
- It is important to seriously punish cartels
Roberto Lopez, Texas Civil Rights
- I don’t know where the 10 year minimum comes from, 5 years is even above and beyond
- For some time there is no efficient legal way to process asylum seekers
- Our complicated policies are making people cross the border
CS adopted, SB 4 voted out unanimously to Senate floor
SB 11 (Birdwell) Relating to the creation of the criminal offense of improper entry from a foreign nation.
Chair Brian Birdwell
- It was SB 2424 is regular session
- It will be the 6th time I’ve laid out this bill
- Authorizes state law enforcement to arrest and prosecute those who0 illegally crossed the border anywhere other than a port of entry, elude inspection by an immigration officer, or enter as a result of misleading information
- This offense is a class A misdemeanor
- If its second apprehension for this offense it is a state jail felony
- And 3rd time is a 2nd degree felony
- If the person has been convicted of a felony not listed in Article 42(a) in the code of criminal procedure it is a 2nd degree felony
- SB 11 creates two affirmative defenses to the prosecution of this offense
- An immigration benefit entitling an individual to law presence or asylum is a defense
- As is compliance with the federal unlawful entry statute
- It is not the intent of this bill to prosecute those individuals who have obtained deferred action for childhood arrivals (DACA) prior to district court ruling DACA is illegal
- The affirmative defense of lawful presence applies if the individual was a DACA recipient between June 15th 2012 and July 16, 2021
- The affirmative defense does not apply for deferred action for parents or (DAPA) or similar to DACA
- SB 11 neither enforces or contradicts Federal enforcement laws
Discussion:
- Hinojosa – is this legislation constitutional?
- Birdwell – I do not believe it is unconstitutional. I would not be surprised if there was a court challenge. If an officer at the border observes someone crossing into Texas not at a port of entry that person may be detained and charged for the state crime of improper entry. The state of Texas does not have the authority to deport the individual and will be reported to ICE before they are released
- Hinojosa – We have federal law in place that makes it a crime of improper entry
- Birdwell – that is correct, the state does not have the power to enforce federal law but federal agents aren’t able to be at every spot on the border. This law would allow state agents that see the federal law being broken to be able to enforce because it would be a state crime. A state officer that sees a federal law being broken must hand them over to the federal government. By making it a state law the state can deal with it internally
- Hinojosa – do you have the capacity to hold all these people in jail?
- Byran Collier, TDCJ – We can identify 3,000 beds for Operation Lone Star and have used 700 of them to this date.
- Hinojosa – That is 3000 beds and we have over 1 million people, TDCJ is at 95% capacity and your population is 130,000
- Collier – The 3000 Operation Lone Star beds don’t go into the 95% capacity. A population of 130,000 with a max capacity of 136,000. We could increase up to 145,000. We cannot hold 1 million migrants, the staffing even more of a problem
- Hinojosa – Hidalgo County is at capacity, they are now renting the Raymondville facility for $15 million which is now at capacity. Where do we put all these people?
- McCraw – The majority of that 1.4 million is under the offices of Border Patrol. If you look at it from a state standpoint the state has referred 476,000 to Border Patrol. From DPS standpoint 220,000 in a three year period. Which would translate to 75,000 a year.
- Hinojosa – This law is statewide how would this affect migrants in cities not along the border?
- Birdwell – The only place this crime can be observed must be at border counties, it could not apply elsewhere because of probable cause
- Hinojosa – Do we have an idea of total cost?
- Tom Krampitz, Border Prosecution Unit – asking for an additional $17 million dollars to the $32 million, it would take an additional 55 positions to handle the case load. We don’t know how many felons will be involved in this case load. A prosecutor can handle 230 cases a year and its difficult to hire prosecutors along the border region.
- Megan LaVoie, Office of Court Administration – The average cost for a misdemeanor is $900. These cases are handled by the county courts so we will need additional funding.
- Hinojosa – What do estimate your increase in cost will be?
- Collier – in the biennium there is money to operate those 3000 beds, $23 million dollars and a place holder of $10 million
- Hinojosa -My whole problem with this bill is that it is not a practical approach to this issue. What does DPS do with families, do we separate them?
- McCraw – We don’t not separate children from their parent but we have on occasion separate people acting as parents. What we wont do is take a child away from their parent.
- Birdwell – The concern of what Senator Hinojosa is that you are already using your discretion as a state authority to minimize the burden for the state of Texas
- McCraw – We aren’t with immigration because there is no state violation we are with criminal trespass
- Blanco – Going back to the 72,000 a year not all those 72,000 are detained?
- McCraw – All of them, are detained and referred to Border Patrol
- Blanco – for those booked for criminal trespassing how many are in a state facility?
- McCraw – in custody 632 right now and 216 charged with criminal smuggling
- Blanco – Are most of these people not smugglers or cartel?
- McCraw – it can be one smuggler and 10 counts charged
- Blanco – Do we have any families in state jails?
- McCraw – no
- Blanco – what is the plan once we hit capacity?
- Collier – Since Operation Lone Star, TDCJ has had 12,000 people pass through these beds. That is using 1500 beds maximum, usually only using 600-800 beds.
- Blanco – What are the percentage released on bond?
- Collier – 759 of the 12,800
- Blanco – how do handle asylum cases?
- McCraw – refer them to border patrol but if there is a state crime they are processed
Public Testimony:
Adam Haynes, Texas Conference of Urban Counties
- Testifying on the bill
- Most of our concerns are related to costs
- The bill doesn’t eliminate law enforcement discretion and we are happy about that
- County taxpayers have to pay the price for this
- It is hard for us to put a dollar figure on this bill
- The federal government has failed why take the cost and put it on state tax payers
- It will increase property taxes.
Charles Reed, Dallas County Commissioner
- We are not here opposing
- Here to remind that the county jails take the burden
- We are at 95% capacity
- Once border county jails fill up it will go to the next county
- We will have to build a new facility or ship them somewhere else
- All you have to do is strike “to the extent feasible” they will have to take them to Operation Lone Star Facilities
- We don’t want to raise property taxes
Justin Estep, Texas Catholic Conference of Bishops
- Speaking out against immigration reform
- Supports countries sovereign right to control their borders but the responsibility relies with federal authorities
- We oppose SB 11
Luis Figueroa, Every Texan
- We are in opposition to SB 11
- Every Texan deserves fair immigration process
- Costs are to much
- I am concerned DPS will be overwhelmed with processing
- Federal reforms are the answer
- We are concerned about legal , cost and inhumane implications
Melissa Shannon, Bexar County Commissioner
- It could be a significant cost to Bexar county
- We would need to add 30 new county courts
- Additional 90 DA prosecutors needed
- Additional 30 bailiffs needed
- 1001% increase in the sheriff’s budget
- This would be a significant increase to taxpayers of Bexar county
Justin West, Galveston County Constable
- Here in favor of the bill
- Texas is doing incredible work on the border
- We will have 1.8 million known got aways since January 2021
Joshua Treviño, Texas Public Policy Foundation
- It is a necessary bill to fight to cartel
- SB 11 is a corrective to excluding the state from federal control
Sandra Whitten, Texas Fully Loaded
- Fully for SB 11
- It’s law enforcement job to enforce the law
- This bill will allow them to further do their job
- We need to keep pushing this forward and I am here to help
SB 11 voted out to full Senate (3-2)