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Sanctuary Cities or Freedom Cities?: Either Way, Texas Is Enforcing SB4

It has been nearly two years since Governor Greg Abbott signed Senate Bill 4 into law on May 7, 2017, attempting to ban so-called “sanctuary cities” in the state of Texas. The bill made public colleges, sheriffs, constables, police chiefs, and other city officials subject to Class A misdemeanor charges and civil penalties for failing to cooperate with federal immigration authorities and detain and hold noncitizen inmates who may be subject to deportation. The final version of the bill also allowed police officers to question a person’s immigration status not only during an arrest but during a lawful detainment.

Senate Bill 4 was highly controversial to say the least, with Democrats and immigrants rights groups moving immediately to challenge the constitutionality of the new law in court. Border town El Cenizo and Maverick County immediately sued the state of Texas and were quickly joined by several local governments, including the cities of Houston, Austin, San Antonio, and El Paso County. In August of 2017, just days before the law was to go into effect, a federal judge temporarily blocked SB4, ruling that the portion of the bill that required jail officials to honor all detainers violated the Fourth Amendment. However, the judge did not halt the part of the bill that prevented city officials from prohibiting officers from inquiring about detainees’ immigration status. When the law took effect, its detractors said that new law had transformed Texas into a “show papers please” state.

Texas appealed the district judge’s ruling, and while that appeal was still pending, a three-member panel from the U.S. Fifth Circuit Court of Appeals ruled that SB4 could be enforced during the appeal, prompting local officials like the Travis County Sheriff to reverse course and announce that the county would comply with all immigration detainer requests. Then, in March of 2018, the entire Fifth Circuit upheld the panel’s ruling, handing a victory to Governor Abbott and the proponents of the law and effectively outlawing “sanctuary cities” in Texas.

Of course, that was not the end of the story. Texas cities like Austin responded by declaring themselves “freedom cities,” instructing the city’s police officers to arrest fewer people for minor crimes like driving without a license or possession of a small amount of marijuana. In addition, while not preventing officers from asking about detainees’ immigration status, the City of Austin also added a requirement that the officers must inform the detainees that they could refuse to answer such questions. These measures are a way for cities like Austin to comply with the letter of SB4, but not the spirit, and protect undocumented immigrants from being deported.

The Texas attorney general sued the San Antonio police chief in November 2018 for alleged violations of the sanctuary cities law, the first real effort by the state to crackdown on SB4. The pending lawsuit seeks, among other things, a maximum fine of $25,000 per day for every day since the law went into effect on September 1, 2017. So far, the governor and the state legislature have not responded to the defiant “freedom cities,” but the legislature is convening this spring. Stay tuned.

Please do not rely on this article as legal advice. We can tell you what the law is, but until we know the facts of your given situation, we cannot provide legal guidance. This website is for informational purposes and not for the purposes of providing legal advice. Information about our municipal law practice can be found here.

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