The Senate Committee on Border Security approved an overhaul to a House measure intended to allow Texas to remove illegal aliens. 

House Bill 4 by State Rep. David Spiller (R–Jacksboro) would create a criminal penalty for improper re-entry from a foreign nation and authorize law enforcement to order them back to Mexico. 

However, several concerns over the implementation of the measure were raised, leading State Sen. Brian Birdwell (R–Granbury) to substitute in language to overcome those perceived shortcomings. 

“HB 4, as engrossed, created the criminal offense of illegal entry and illegal reentry and it also allowed for officers to, in lieu of arrest, remove the person from the country or from the state by collecting their information, transporting the person to a port of entry, and ordering the person to return to the foreign nation from which they entered,” explained Birdwell.

He expressed that this would likely breach the 10th Amendment of the U.S. Constitution and infringe on federal immigration enforcement authority. 

Birdwell’s substitute for HB 4 returned much of the language of the legislation to that which was originally offered by Birdwell in Senate Bill 11, which passed the Senate weeks ago. 

It also creates a criminal penalty for illegal entry and increases penalties for re-entry. However, rather than allow law enforcement to order an illegal alien to return to Mexico without being convicted of the new state crime, an illegal alien must be convicted before a judge can order removal. 

At that point, Birdwell said, a “Judge [can] enter an order requiring that the person be returned to federal authorities at the nearest port of entry for return to the person’s country of origin or the foreign nation from which the person entered or attempted to enter.” 

He continued: “It does not compel the federal government to obey the law. But it allows us to return them to the port of entry to the border patrol and ICE officials that are at the ports of entry on our side of the river for proper federal disposition. What that might be, is certainly a federal call, and that’s our frustration with the performance of our federal counterparts right now.” 

However, conviction of a crime is a reason for federal deportation. 

Nevertheless, concerns over the changes to HB 4 were raised.

Melissa Ford Maldonado of the Texas Public Policy Foundation testified in favor of both HB 4 and the CSHB 4, stating “We support HB 4, we support the committee substitute, but we would also support creating further deterrence by giving peace officers additional tools such as the authorization to order illegal immigrants to return to the foreign country that they came from, for the sake of all the victims of the lawless border.”

Kinney County Attorney Brent Smith told Texas Scorecard, “The only thing this Bill deters is confidence in our state legislature. It places the hopes of securing our border in the hands of the Biden administration’s open border policies that are being carried out by DHS. Relying on the Biden administration to secure our border at this point is just foolish. With the current terror threat reaching new levels in our country, Texas should be doing everything possible to protect our southern border. This bill fails to do that and it fails to protect Texans.”

Smith highlighted that the committee substitute downgraded the penalty for most prosecutions taking place now using criminal trespass from a Class A misdemeanor to a Class B misdemeanor for illegal entry. 

The Senate committee passed the committee substitute to HB 4 in a party-line vote of 3-2. The full chamber must now vote on it. The House can then approve the changes made in the Senate or send the measure to a conference committee. The conference committee will either reconcile the differences and come to an agreement or let the measure die. 

Sydnie Henry

A born and bred Texan, Sydnie serves as the Managing Editor for Texas Scorecard. She graduated from Patrick Henry College with a B.A. in Government and is utilizing her research and writing skills to spread truth to Texans.