ADDENDUM
(SECOND DAY CONTINUED AND THIRD DAY — Thursday, November 9, 2023)
The following remarks regarding SB 4 were ordered reduced to writing and printed in the Senate Journal.
(Second Day Continued)
(Remarks on second reading)
President Pro Tempore Schwertner: Senator Perry, you're recognized on Senate Bill 4.
Senator Perry: Thank you, Mr. President and Members. Senate Bill 4's a public safety bill that's related to the problems we've incurred at the border, having an open or forced border, is directly related to protecting Texans as well as the citizens of this country creating two new criminal offenses under the Penal Code. Specifically, the problem with the open border has created, as we've heard numerous times throughout the session, cartel enterprise, terrorist and infiltration, fentanyl crises, human smuggling where people are treated as commodities. This is a response for Texas to do what it needs to do to protect the citizens under an imminent and undeniable threat that we currently face by open borders. With that, I move to suspend the regular order of business.
President Pro Tempore: For what purpose does the Senator from Harris County rise?
Senator Huffman: To ask the author of the legislation some questions, if I may?
President Pro Tempore: Senator Perry, do you yield?
Senator Perry: I yield.
President Pro Tempore: Senator Huffman, you're recognized.
Senator Huffman: Thank you. Senator Perry, if you would allow me to, I'd like to kind of go through the bill and ask you some questions, just to clarify for me some of the intent of your legislation. I think it would be helpful if you're willing to do that. And I'd like to start by directing you to, I hope we have the same version printed out. I have page 2, which is under Article, the new Article 5B.002. And at that point in your legislation, you talk about a magistrate during a person's appearance under Article 14.06 or 15.17. So, just to discuss that, so, you're creating two new offenses, a new chapter in the Penal Code, Chapter 51. Correct? And you'll have 51.02—
Senator Perry: Yes, Ma'am.
Senator Huffman: —so you have illegal entry—
Senator Perry: And reentry.
Senator Huffman: —and then illegal reentry. Right?
Senator Perry: Correct.
Senator Huffman: Okay. So, those will both be criminal offenses. So, when you talk about this section, that would come into play when a person has been arrested for these new state offenses. Correct?
Senator Perry: Correct.
Senator Huffman: So, under the law and under the Constitution, and so forth, when a person is taken into custody, under an arrest, a lawful arrest by a police officer, and these would be two new state offenses, they would be brought before a magistrate. And just to make it clear, and I'm reading from the Code of Criminal Procedure, just to kind of refresh what goes on there, of course, they're going to be, inform the person why they're arrested. They can do it through a video conference, of course, which they might do. They are informed of their right to retain counsel, their right to remain silent, their right to have an attorney present during interview, the right to terminate, the right to examining trial, et cetera. And they're also, at that point, practically also, the way that they're doing it now through Operation Lone Star, they're advised of their right to contact their consulate, that's part of their rights. And they also have the right to bond, to bail, which we've talked so much about. So, all of those processes, those due processes that any person who's arrested, whether they are here legally or illegally, have a right to. Is that correct? So, that all will still happen in your legislation?
Senator Perry: The intent is not to change any current practices, specifically to civil rights and due process.
Senator Huffman: Okay.
Senator Perry: It is intended to be identical to, no matter who you are or what your charge or you're from.
Senator Huffman: And the reason I'm going over this is because I think there is confusion about this. But you're creating new criminal offenses. Individuals would be arrested for that. They would then go through the process and they would receive all the rights. They would have a right to a lawyer, they would have a right to have a, an interpreter to make sure they understand what's being said. So, all the rights we give stay in place. Okay. We've established that. Okay. So, let's go to the second part that I have a question about, where it talks about at this hearing or after the, or it says either the or the judge in the person's case, at any time after that appearance, so it's clear through your legislation they're entitled to that due process. After that, in lieu of continuing the prosecution, at any time for either a charge of under 51.02 or 51.03, the judge can dismiss the charges pending against the person and order them to return to the foreign nation. Okay. Let's stop there for a minute because I think this is an important point that I'm not clear on. So, I'd like what's your intent is.
Senator Perry: Let me offer something, and not to interject, but I think—
Senator Huffman: Okay.
Senator Perry: —you're going, Office of Court Administration, and I meant after the bill was filed, and they raise the issue that magistrate really can't, quote, dismiss a charge—
Senator Huffman: Exactly. That's where I'm going.
Senator Perry: —and so it's more of a technicality and you have two issues, really. We have the OLS magistrate process, and then we actually have border counties that have their—
Senator Huffman: Right.
Senator Perry: —regular stuff. Right?
Senator Huffman: And if—
Senator Perry: And, and they can end up either where in one of those processes. And so, they were pretty much concerned that the OLS people may figure this out, but the other guys wouldn't have a clue on how to deal with this magistrate section. So, they rewrote it to fit, basically, that is cleared up that it's a judge in that role of dismissing charges. It's an amendment that I'll offer up to clear that up. But it's specific to where I thought you're going and if I'm wrong—
Senator Huffman: Yeah. So, the judge will not be able to sua sponte the charge, dismiss the charges, because we don't, we don't—
Senator Perry: Correct.
Senator Huffman: —allow that under Texas—
Senator Perry: Correct.
Senator Huffman: —law. It has to—
Senator Perry: So—
Senator Huffman: —be moved by the pros-- well, that's not true under certain circumstances—
Senator Perry: Yeah.
Senator Huffman: —when—
Senator Perry: Right. Always—
Senator Huffman: —speedy trials—
Senator Perry: —always exception—
Senator Huffman: —but—
Senator Perry: —the law's always got exceptions—
Senator Huffman: —okay.
Senator Perry: —but the mechanics of the process is now cleaner and clearer—
Senator Huffman: Okay.
Senator Perry: —than, than the original filed bill, and that amendment will be up and your—
Senator Huffman: Great.
Senator Perry: —staff probably can see that right now.
Senator Huffman: Okay. And then, so, it will be the prosecutor's discretion as to whether or not to move for dismissal in lieu of prosecution?
Senator Perry: It'll be an option on the table and with the prosecutor can have that as well as, I think, the counsel that's provided through the normal due process will have that conversation with that individual.
Senator Huffman: But one of the options—
Senator Perry: Right.
Senator Huffman: —available. Okay. So, then my question is you allow that option to be available for both 51.02 and 51.03. And 51.02, of course, is when there's a direct entry into the country. So, that would be someone crossing, you know, I'm assuming, the border, police officer, or you know DPS sees them crossing, that's a direct entry from a foreign nation. So, that's one offense. And, and then you have that option of lieu of removal, removal in lieu of prosecution. But you also offer that under 51.03, which is going to be a reentry. So, all of those individuals would have one time been through the process, either have been deported, have been removed through this process, and so, are we going to allow the, and I'm just asking the question, so, those individuals would have another shot at a removal, perhaps, a voluntary removal even though they've been through the process prior?
Senator Perry: Yes, it's the discretion there—
Senator Huffman: Okay.
Senator Perry: —it's not intended. If you're a two-timer, you probably aren't going to get that option.
Senator Huffman: Okay.
Senator Perry: It does—
Senator Huffman: Prosecutor's discretion—
Senator Perry: —right, right.
Senator Huffman: —again.
Senator Perry: Exactly.
Senator Huffman: Okay. I just wanted to make sure that that was what we were doing. So, okay, so we've clarified that. Okay, a question. So, to, to do this voluntary bring them back to the port of entry, they have to agree to the order, and this is where it gets confusing. What—
Senator Perry: They—
Senator Huffman: —confused—
Senator Perry: —they set up in the order, they acknowledge that if they're caught on reentry that they, basically, step up the enhancement of it.
Senator Huffman: —okay. Alright. Because then you say on here you can do that if they haven't previously been removed. But then, okay, I'm not asking this question well but it's confusing. But then in the earlier part of the bill, you have 51.03, which is a reentry, that you can be, you can voluntarily remove yourself, but then it says to be voluntarily removed you can't have previously been voluntarily removed.
Senator Perry: Right.
Senator Huffman: So, I think it's contradictory. I just caught that. I'm not trying to throw this at you.
Senator Perry: Yeah. I—
Senator Huffman: I was just reading it and it, I'm not sure, think it's a—
Senator Perry: —yeah. I think the intent is—
Senator Huffman: —problem.
Senator Perry: —if you're a reentry, approved your reentry, you had a previous conviction of being here to start with, that that option's not going to be there. It reads as if it could be, but I don't think that the practical application that it's going to give them that.
Senator Huffman: Okay. But again, it, if it's, if the person agrees to the order—
Senator Perry: Agrees—
Senator Huffman: —okay. So, then my next question, so it, we require, of course, that they, we run the criminal history, we take their fingerprints before they can be released, we didn't just want a catch and release process. So, you have all that taken care of where they do cross-references with databases, international databases, if appropriate. So, once that is done then those individuals would in all likelihood be treated differently. Correct? Say if they were on the terrorist watch list, or they had, you know, if they were able to pull up some, I don't know how, how good the capabilities are getting international criminal databases, I'm not sure how quick that comes up. But if that information came up then they would, in all likelihood, not be someone that would be offered just to be a free trip back home.
Senator Perry: Well, I think, and the intent is not to change anything that's currently in process right now, today.
Senator Huffman: Okay.
Senator Perry: So, if we do a background check and they've got warrants or criminal then there's automatically a process in which that happens. Right?
Senator Huffman: Yes.
Senator Perry: If they're trespassers, we set up a state trespassing charge. In previous session legislation, they go to jail for that on a state level. So, I guess where I'm at is if they come up as a bad guy in the system—
Senator Huffman: Umh hmm.
Senator Perry: —then we already, pretty much, know what that process is and it's, they're probably sent to jail over it. So, none of that current processes are changing. We're adding two new offenses in order to, one, deter, two, to track, you know, if you've got a recur or recidivism of the same individual back over and over and over, it's got to be some deterrent in that. And it really gives state a little bit more control over who it is and what it is is coming through the border. So, we're a little bit more control of who those people are in hopes of the, you know, the border patrol is doing to the best they can. It's a, it's a complicated system. If they're coming across the bridge, they do a decent job of, kind of, finding and tracking the bad guys. Between those port of entries that has, unfortunately, fallen on Texas and we spend billions of dollars as you've said. So, we're not changing any disposition of an existing criminal that we catch.
Senator Huffman: Okay. And because some of these offenses are elevated to a felony level, of course, they will be, they will be going through the TDCJ process rather than the county jail process for the ones that say, I would assume, the Class B misdemeanors arrested under here, the direct entry, many of them will go through the Operation Lone Star border facilities that have specifically set up to handle these. But, so, my next question would go to, I'm on page 3, let's see, the section that talks about on conviction of an offense under the new chapter 51, the judge shall enter in the judgment the part about the person is a require to return to the foreign nation. Also, in the order, it has to provide for the mode of, matter of transportation to the port of entry. So, my question goes to during this process, especially for the felons, but I believe also for those who are confined under misdemeanor, there is a natural interaction with ICE. Okay, because ICE many times places detainers on those who are convicted of felonies. There, there's a natural working between the state and the federal entities on the criminal side of this. Okay. So, my question is if there is a judgment order that states that they will be returned to the foreign nation and the mode of transportation, what happens when there is a conflict with ICE? Because sometimes ICE has a detainer because they want to pursue federal prosecution. They don't necessarily want to just deport them. That they may be now implicated in, you know, some type of organized crime, I mean, there's other reasons why ICE can be involved. So, does your bill preclude involvement with ICE if it is, as you say, part of the ongoing process and otherwise, you know, something that the federal, that the federal investigators are pursuing?
Senator Perry: Yeah. The, the—
Senator Huffman: I mean, I—
Senator Perry: —bill does not change any of those processes or communications, or, and I would assume they would still occur, and especially if we have a felony, a little higher grade. I'm sure there's conversation right now we have 180-day jail offense for a trespass or whatever. They serve the jail time for the state and then that conversation with the feds occurs. I guess what I would suggest is we don't, we don't have the transport back to the foot of the bridge. That's not our territory, we stay on this side. We point them that way. But I'm almost certain if that person was of a offense status that they needed to go to the feds or they're, once this offense is served, this time served, that that communication with the, with the federal agency partners would be the same. We have state crimes already. We're creating two new state crimes.
Senator Huffman: Right.
Senator Perry: We're not voiding any of the current process with the feds or the partners, and I asked a question if one of our state officials has someone arrested and is in custody or fixing to, if a federal partner comes up and says that's mine then we will have to turn those over. It's not like we get to stand up and say, No, Sir, that's a state crime felon right now, or something like that. So, we're not changing any of the federal system. We're not deporting people. We are issuing a option to, you can go back or you can serve time. So, and we don't deport people. We are going to take them back to that border and, hopefully, they'll comply. And if they show up two days later, three days later, illegally entering the ports between the two legal entry ports, they're going to get arrest again.
Senator Huffman: Right.
Senator Perry: That just starts building the track. Right?
Senator Huffman: Right.
Senator Perry: So, we're not changing any of that communication interaction or requirements to comply with the feds on that side.
Senator Huffman: Okay. Then, and then another thing I will point out, I think that's important for people to realize is that you do include affirmative defenses in here. So, if a person is, in fact, lawfully present because they are seeking asylum or they've gotten—
Senator Perry: They're a work visa—
Senator Huffman: —something—
Senator Perry: —truly asylum seekers. If they're under that weird time frame for DACA, kind of conversation.
Senator Huffman: Right.
Senator Perry: So, we've tried to allow for known exemption that exist at the federal side and we will respect those exemptions.
Senator Huffman: Okay. So, that's clear in there. And then, of course, and we talk about illegal reentry, we talked about that offense and, you know, we've heard some criticism but, in fact, the fed, feds already have an offense that's very similar to this, that they sometimes enforce sometimes don't, but it is a federal crime to reenter after deportation, I'll just point that out. The other question that I think, again, is one I'm not sure exactly how it works, is that, and it's Section 51.04, which is the refusal to comply with order to return. So, you say on part 2, if the magistrate or the judge has issued an order under Article 5B.002, and that's the return to the foreign nation where they have to consent, okay, in lieu of prosecution. So, that determine has been made, determination has been made. They've had all their rights, they've consulted with their lawyer, they've decided, no, I don't want to be prosecuted, I'm just getting out of here, and they, and you send them back. But then I don't understand then, why you have if the person refuses to comply with the order that that becomes a second degree felony. So, that would, that just be kind of the random case where they got there and then they decide, they said, no, I'm not really going to go, or can you explain to me—
Senator Perry: As a—
Senator Huffman: —what the intent of that part is?
Senator Perry: —yeah, I think is the practical application. We're going to take them back. A state official will transport them back to the foot of the bridge.
Senator Huffman: Okay.
Senator Perry: We don't get on the bridge, it's not our jurisdiction. We're not going to walk them across the bridge. We're going to point them to the bridge and say, there, it's your path.
Senator Huffman: Okay. Okay.
Senator Perry: You know, I guess it gets to if we watch that person go across the bridge, you know, if, and I would suggest to you that the border patrol will be over on that and they will, hopefully, expedite them or move them across the bridge. If at that point the person says, I'm not doing this. I'm going to stay exactly right where I'm standing, or I'm going to come back into the country, or in those situations where they just refuse to walk across in a visual form where you have now complied. I would think that would, it, second degree felony is what's going to do. If it's—
Senator Huffman: Well then the, this would give the authority, in case that happened, to rearrest—
Senator Perry: Right.
Senator Huffman: —then they would probably go back to the same magistrate and prosecutor—
Senator Perry: Right.
Senator Huffman: —who arranged the original deal because it is a, it's like, I mean I hear people struggling—
Senator Perry: It's like pretrial—
Senator Huffman: —with this.
Senator Perry: —diversion, kind of.
Senator Huffman: But we do pretrial diversion—
Senator Perry: That's what it is.
Senator Huffman: —exactly.
Senator Perry: That's—
Senator Huffman: Or we say, you know, public we impress, we arrest people for public intoxication and say, would you rather go to the drunk tank? I mean—
Senator Perry: Yeah.
Senator Huffman: —these, we do diversion all the time.
Senator Perry: Yeah.
Senator Huffman: And so, this is a, would be a Class B misdemeanor diversion. And so, that is just in case someone got there, was kind of playing tricks with the court—
Senator Perry: Absolutely.
Senator Huffman: —in other words—
Senator Perry: Hey, I'm all in, judge, please let me sign this paper, get the heck out of here, and then they don't follow through. And then on the first time offense, back to your very original, the prosecutor, I'm told, is not required to sign off on that first time. That's strictly adoption for the judge. They have the conversation and they allow that to happen without a lot of fanfare. You know, it's for the uninformed or the, or the person that didn't know, really, that we were doing this now. You know, you kind of get a, get a little bit of a break on the first time around. Hopefully it'll be a deterrent so that they don't do it again.
Senator Huffman: Okay. Alright. I just want to reiterate, though, because it just seems to me there's been some confusion about the bill, what we're doing. But we're not stepping on individual's rights, due process, Fourth Amendment, the law's very clear if you're arrested for a state or a federal offense and you're in the United States of America, you get all the rights whether you are here legal or illegal, legally or illegally. That's the Constitution as it's been interpreted. So—
Senator Perry: To the best of this bill author and those that have helped build this bill over the last few weeks, it is the intent that civil liberties are protected and due process—
Senator Huffman: Right.
Senator Perry: —is held to its highest standard. There—
Senator Huffman: But it gives us two new powerful tools for—
Senator Perry: Deterrent.
Senator Huffman: —trying to protect—
Senator Perry: Right.
Senator Huffman: —our state and sovereignty of our state, and it is, I mean, we keep talking about tools in the toolbox but this is just another one.
Senator Perry: It's one more process that we haven't tried to try to fix a true, legitimate concern of public safety, for the nation as well as this state. And nobody can make an argument that we don't have a real safety problem. It is anchored under the Constitution of the feds. There's a provision that says, if imminent danger is, cannot be denied. It's that piece that I think we anchor that we have no other choice when you have fentanyl cases at 27,000 pounds, as you've said earlier—
Senator Huffman: Right.
Senator Perry: —in 19-- in 2023, this year, enough to kill 427 people. When averaged, five Texans a day die from fentanyl poisoning now. When you have 169 in '23 show up on the terrorist watch list, that is an immediate daily certain threat that the State of Texas faces every single day. This gives us an actual criminal charge to assess, doesn't bother the feds' processes, doesn't get in their world, we will have some deterrent and just as importantly a log, a criminal background check, now on everybody that commits that crime. So, it really starts the process of being able to track and identify and protect. This is about protecting the citizens of the state as well as the country from those, you know, that's, there's a, there's a narrative out there that we only catch one out of three I think is the, so, you can translate that or extrapolate that. We caught 169 on the bad list. Now there's not as many of them in those population bases, but we probably missed a few. This is going to, hopefully, through state partnering with feds we'll have one more tool to actually capture some of those guys that we're probably not getting right now.
Senator Huffman: Well, thank you for answering my questions—
Senator Perry: No, I appreciate the questions and it's a—
Senator Huffman: —it's a—
Senator Perry: —good—
Senator Huffman: —it's bold legislation that was badly needed and you managed to thread the needle, make a very strong—
Senator Perry: —I—
Senator Huffman: —piece of legislation. Thank you.
Senator Perry: —that was the goal.
Senator Huffman: Thank you.
Senator Perry: Threading the needle. Had a lot of help.
President Pro Tempore: Thank you, Senator. For what purpose does the Senator from Hidalgo County rise?
Senator Hinojosa: Will Senator yield for some questions?
President Pro Tempore: Senator Perry?
Senator Perry: Absolutely, Sir.
Senator Hinojosa: Thank you—
President Pro Tempore: Senator, you're recognized.
Senator Hinojosa: —Senator Perry. I think probably all, or most if not all of us, agree that we do face some challenges along the border. Our border security is extremely important. And I support very strong borders as based on border security. But I do have some questions because sometimes we agree with how to secure our border. And there are issues and problems that I have with Senate Bill 4. And first of all, the bill applies to the whole State of Texas. That correct?
Senator Perry: The offense can be charged anywhere in the State of Texas. Now, you understanding, you being a lawyer that you are, we didn't toss out probable cause, we still have those measures. So, the idea of someone being arrested for an offense under this border, away from the actual border is not likely. If someone is arrested in Lubbock, Texas, for a DWI, an assault, a burglary, or a robbery, and through that process they're determined to have been an illegal alien in the borders, in the interior, it could become a charge, but there's not a process in my mind that would ever allow a law enforcement official to enforce this specific law, these two new criminal offenses, without establishing a probable cause for some other offense first.
Senator Hinojosa: Well, and that's my point. So, you do not have to see the unlawful entry actually take place out on the border—
Senator Perry: This would not be—
Senator Hinojosa: —to enforce the law.
Senator Perry: —an offense you could assess and probably be successful without a civil rights challenge because probable cause for some other offense will be where this potentially could come in interior to the border. Obviously, on the border those officials that are arresting people will see those people come across between two ports of entry illegally. If you're not coming across the illegal ports, this will apply to you on the border. Interior, I don't know how an officer could get there. I don't think they can get there and have a, and survive a legal challenge. So, I, to your question, yes, it is statewide, but in practice, and you know this as an attorney, there is not going to be an option available to an officer unless there was another offense and probable cause established for that offense.
Senator Hinojosa: Let me, I don't agree with that analysis because you can stop a car in Dallas or Houston or San Antonio for defective taillights, for speeding, that's probable cause to stop a vehicle and ask questions. Right? Would you agree with that?
Senator Perry: Yeah. I mean, I've heard the broken taillight theory in the past, and it was Senate Bill 4 conversations for months, and it didn't happen, hasn't happened.
Senator Hinojosa: Well, they're not going to keep an officer from asking the occupant of the vehicle who is Hispanic whether or not—
Senator Perry: And, and—
Senator Hinojosa: —he crossed the border or if he did an unlawful entry.
Senator Perry: —I was just handed a reminder that if a person confesses to being here illegally, interior of the border, that's enough for assessment of the crime. So, if there is a probable cause arrangement where someone's stopped or someone's caught burglarizing, that's one offense that will bring this conversation to light. But if someone volunteers that information, that's enough for an arrest.
Senator Hinojosa: So, there's nothing that would keep an officer up in Dallas or San Antonio, Houston from asking a Hispanic driver who got stopped for speeding whether or not he is in this country lawfully.
Senator Perry: I don't think that most officers would go there, and most of them are asked for identification and it's probably going to be a Texas driver's license or some other license. If there's not that information provided, the officer already has other means to ask those other questions. So, someone without identification, that officer already has an existing process. We're not changing anything in the criminal processes or the officers' world that you should expect them to be able to just randomly have that conversation. There's already systems in place that if someone can't produce IDs, then there's probably all kinds of conversations those cause, because people want to know who you are when they pull you over.
Senator Hinojosa: Let me ask my question again.
Senator Perry: Yes.
Senator Hinojosa: There's nothing to keep a law enforcement officer from asking a driver whom he stopped, the officer stopped for speeding, or whatever probable cause was used, from asking the occupant of the vehicle who's Hispanic whether or not he's in this state illegally.
Senator Perry: It's, the bill is intended for those that have entered the state illegally.
Senator Hinojosa: That's, and that's my point. So—
Senator Perry: Correct.
Senator Hinojosa: —okay. So, then we'll move on to other questions because I think they're very important. So, here, you know, we do face a crisis along the border. We had 1.1 million people come across the border that were contacted or at least stopped by border patrol or DPS from Brownsville to El Paso, during the 11, the last 11 months, 1.1 million. That's a lot of people. So, I agree that there's a huge challenge. But under your bill it would allow, number one, someone that comes unlawfully across the border to be charged with a Class B misdemeanor. Is that correct?
Senator Perry: Correct.
Senator Hinojosa: Alright. DPS testified in the Border Security Committee that DPS would make approximately 75,000, 75,000 arrests a year. Seventy-five thousand charged with Class B misdemeanors. Okay. Where would you incarcerate those people?
Senator Perry: We have, my understanding, reworked to make jail standard provisions and existing compacity in the TDCJ. We have two other detention facilities. And if that event were to occur, and the bill is designed to where it could occur for sure, I'm not denying the fact that we could. We had 200,000 people come through here last month. I'll remind you that 1.1 million is those that the border patrol saw. There's another 800,000 that filtered through the ranks, but the capacity issue we will meet as a state if it's needed. That is my assurity from the Governor's office.
Senator Hinojosa: Well, let me give you some numbers so we can be realistic about what's happening here. Okay? TDCJ has a capacity, right now, that's 95 percent full, about 116-118,000 people. So, they can't take much more other than what we already are taking in terms of normal, natural crimes apply here in Texas. A Class B misdemeanor goes to a county jail, Class B misdemeanor. Who's going to pay for that?
Senator Perry: So, again, this Legislature, the last bill we filed and the 100 million the Governor's trust funds that we gave them in this, in this session, is intended to meet these local costs in the event they incur them. And I've talked to the sheriffs, and I visited with my sheriff. And I've asked them what they think about it. And they understand the problem we have. Most of them don't have a lot of excess capacity but any cost incurred, I am assured that this Legislature, and there's $100 million available today that we did. Realistically we're coming up on January '24. We will be back in January '25, and we will backfill, as we always do, supplemental charges that we did not see coming for the locals not to have to eat that.
Senator Hinojosa: Senator Perry—
Senator Perry: Yes, Sir.
Senator Hinojosa: —let me give you the numbers again. You got 75,000 people that can be arrested by DPS a year. That's the estimate by DPS. That's the testimony. There're only 90,000 county jails available, 90,000.
Senator Perry: We have—
Senator Hinojosa: That's for, that's for all people arrested across the border, not just—
Senator Perry: —so—
Senator Hinojosa: —immigrants.
Senator Perry: —I know I'm telling you something you probably know. When I started the session is 2011, we had about 155,000 inmates in TDCJ, COVID, that number dropped substantially because of a lot of court backed up issues, and now we've recovered to about 140. But because of workforce and other shortages we've actually shuttered, not completely closed and walked away from, multiple jails across the state that with some modification will accommodate easily another 20 or 30,000 people, if we get those back up and running with the proper personnel. Now, until that happens, and the need is there, and we should be thinking in those terms that it should happen or would happen or could happen and start addressing it today before it is a problem, but I have all the confidence in the world that we will find a place to house, if it is part of the reason that a first-time offense has the provision in there where they can actually be taken back to the border and return is to hopefully mitigate that capacity issue and learn and teach a lesson that we do have laws in this state that will lock you up going forward. So, I'm hoping the deterrent alone will hopefully mitigate the 75,000 down to a different number because a lot of these people probably are first-time offenders.
Senator Hinojosa: Senator Perry, do be realistic. Do you really think that someone that comes from South America or Central America and pays the, goes through all the suffering or all the dangers of criminals, the cartels, and what have you, they pay thousands of dollars to be smuggled across the border, are going to say, okay, yeah, let me just walk back?
Senator Perry: I can't make a decision about those. Now, if they're from some of those countries you named, I think they might qualify for an asylum process. I'm not sure which countries south of Mexico—
Senator Hinojosa: But they're coming from—
Senator Perry: —get in here.
Senator Hinojosa: —all over the world. Think about that. Why are they going to walk across back when, you know, if you put them in jail here for a mandatory 180 days—and I'll ask that question in a minute because for—they're going to get 180 days mandatory under Class B, Class B misdemeanor, they get food, health care, shelter.
Senator Perry: So, see—
Senator Hinojosa: A place to shower.
Senator Perry: —so you kind of ask a question that is the purpose of the bill. We don't know why some of these people are coming. And that in itself should be a point of concern because to your point why would anybody want to go through that and put themselves through that if there's not an ulterior motive of possibly, just possibly, hooking up with cartels, being part of a smuggling operation, and being dealing of drugs. So, to your question, the answer for the bill is if we knew why everybody was coming and they were coming here for the right purposes, there is a process. They go across the border through a legal port of entry and start the conversation there rather coming across between legal port of entries to where then we have to raise the question, what is your motive and who are you and what are you here for? Because if they'll just walk across the bridge and have that conversation, if the feds are doing their jobs right, they'll continue to move progress in or they'll be sent home at that point. So, again, Texas is left to pick up the issue that has been created, and it's purely 100 percent. This says border security bill, it's really misnamed. It's a public safety bill. It's addressing—
Senator Hinojosa: I—
Senator Perry: —public safety.
Senator Hinojosa: —and I will agree with you, Senator Perry, that the federal government has not done its job in securing the border. I do not disagree with that. I agree with you on that. My point is this cost of doing what Senate Bill 4 is proposing to do, is being pushed on our local communities along the border. You have not talked to my sheriff, I know that for a fact. You've not talked to my county judges, I know that for a fact. I already know that we, the County of Hidalgo jail is full. They had to lease jail facilities at $15 million. Fifteen. So now, we're talking about pushing 20-75 or 75,000 people arrested for Class B misdemeanors. And the judge doesn't have discretion. If they are convicted, they have to serve 180 days, mandatory. They cannot dismiss the case, they cannot give them probation, or they cannot do it under any kind of supervision. That is a huge hit of money that our local taxpayers are being asked to pay. The state is not paying enough money to even cover that.
Senator Perry: So, you being Vice-chair of the Finance Committee are very familiar with the fact that we have given the Office of the Governor $100 million to address this very issue, with a commitment that they will always get reimbursed if it is needed more, and I would even venture a guess if it got out of hand quickly then we would call a special session to address the funding needs. This state, number one, is going to protect its citizens. This is what this Senate Bill 4 does. Secondly, it is going to have the payment to protect its citizens, be it local or state, that administers the law to publicly safeguard our citizens. So, the argument that it cost too much, I don't know how much is too much when you're having five Texans a day, on average, die from fentanyl. I don't know how much too much to guard public safety when you're having human trafficking and cartel enterprises step up every day and creak and cause havoc. I don't know how much is too much when you have a human trafficker take a 10-year-old and have them raped for profit 10 times a day. So, at that point, the cost of what it takes to protect the citizens is not a concern that I've heard from State of Texas, nor the local officials that we're asking to help with this process because we have, we, they could take the bank that they will not spend any dollars at the end of the day once this need is made aware of.
Senator Hinojosa: You know, we understand all the crimes are being committed and we prosecute those crimes. And that's not what I'm talking about. You're not answering my question exactly about the cost involved. I am, I am on Finance Committee and we know about a money that's being appropriated to, for border security. But the reality is that we have not put enough money to cover the costs that be, that will be incurred by our local public officials along the border, our counties, our sheriff departments. You know, the, this is a huge hit. I think Harris County alone is estimated that will cost them $15 million, you know, just to house all this arrests that could happen in Harris County alone. I mean, that, that's 100 million is not even near enough to be able to reimburse counties.
Senator Perry: It—
Senator Hinojosa: Let me just give one example, if I may, because it is, it's a big issue to me. If we're going to do this and pass Senate Bill 4, then we ought to incur and pay for the cost up front on estimates, not wait to get reimbursed, because otherwise the reimbursements will not be able to cover the costs and the burden of being placed on local border counties and other counties across the state when this, if this law becomes in effect and is really put in place and arrests are taking place. Because, again, there are mandatory, the misdemeanors are mandatory. I mean, I, I'll stop at that because—
Senator Perry: Yeah, I, I'm with you. I don't think anybody should bear the cost of a state initiative to safeguard its deals except the state. I can tell you there's not a Member on this floor, D or R alike, that will not commit to reimbursing the locals if that need occurs. And if they need it quicker than the next session, I have all the confidence in the world we will step back in this Chamber and address that need immediately. But you almost make the point for me that we have so many people that are coming into this country that potentially could cause wreak and havoc and harm and the idea that don't have enough space to lock them up should be a deterrent for doing this initiative, I can't, I can't get there. I'm not going to go there. I can no longer let what we're letting through the system and acknowledge that well, they're going to do something on that level, I hope, only to find out it was a catch and release avenue. We have to start sending a clear message that Texas is no longer going to be a place where you can walk in illegally, do whatever business you feel like you should do or be a part of whatever enterprise that you can that is harmful, and not have a consequence for it.
Senator Hinojosa: I think, you know, I've, what I'm talking about is the cost. You want to talk about cost then—
Senator Perry: We're going to cover the cost.
Senator Hinojosa: —then, well, hold on. It, I'm sorry but if we talking about $100 million is that—
Senator Perry: I hear you.
Senator Hinojosa: —will not cover.
Senator Perry: I, I argued, if you remember when we were talking about the 1.5 billion that we put on the wall back a week ago in Finance, if you were listening, what I was saying was we've got a bill coming and it potentially could cost more money so maybe we'll want to wait on that. We've done the infrastructure bill, but in that conversation I remember and Chairwoman Huffman said clearly, and I heard government, Sara Hicks, say we will take care of any cost that this initiative incurs. So, I have the—
Senator Hinojosa: I'm not going to belabor the point, but there's not enough money that we appropriated to cover this cost right now—
Senator Perry: Not today but—
Senator Hinojosa: —in terms of discretionary money.
Senator Perry: —it can be, it can be. It can be.
Senator Hinojosa: Well, I'm just telling you what it is.
Senator Perry: It can be.
Senator Hinojosa: I have talked to, about my constituents. I understand that this is a big issue for all of us, border security, and we ought to have a strong border and defend our border, but all I'm saying is that cost is being shifted to our local communities and that we're not in agreement with that. Well, I'll move on to another issue.
Senator Perry: And we, we've, I would say it this way. We will have spent almost $12 billion with the passage of that bill that we passed off today.
Senator Hinojosa: Let me ask about—
Senator Perry: And I will tell you this is the best money that we have spent as a state going forward to try to provide a actual deterrent and a tracking of those folks that are coming in. So, I hear you about the cost, I'm concerned about the cost, but to date we have provided funding to do what we thought we needed to do. This is one more avenue, one more option, to try something different so that we get a different impact and a different result and a deterrent.
Senator Hinojosa: Our local, our local communities along the border, and we live there, and we work there, we have our families there.
Senator Perry: I will work with you hand in hand to get them reimbursed.
Senator Hinojosa: I, let me finish, please.
Senator Perry: Yeah.
Senator Hinojosa: We don't agree with the cost that's being shifted over to our local taxpayers.
Senator Perry: I don't agree that it should be shifted either.
Senator Hinojosa: I, well, you know, we agree to disagree and that's what's happening.
Senator Perry: No, I don't disagree with you. I don't think we should have any costs assumed, absorbed, or shifted at the local level, and I'm just telling you I don't hear anybody not committing to reimburse those communities when that happens, if it happens.
Senator Hinojosa: Well, I don't see it happening. One more question on this, and it's important one. On affirmative defenses that are provided in the bill itself, you do not, that can only be asserted in actual, in actual court. Right? You can't say up in the, if a police officer stops you and you tell them, Well, I'm under, I'm right now exempt under DACA, the police officer still has to go and arrest you, for whatever, whatever reason because of the charge of unlawful entry. This, they could still arrest you, but if you provide the affirmative defense, it only applies when you are in actual court.
Senator Perry: Yeah. I would, I hear what you're saying and you're correct on that particular exemption. What I'm also told, though, if you are a visa, if you have a legitimate work permit that you do have on your person, I was told this, I asked this, if it's not true then the information was wrong, that you do have on your person documentation that you're here on visa status. Now, whether that's true or not, that's what I was given the answer when I asked that if someone's a agricultural worker, for instance, in my area, and they show that they're on work permit that there is documentation available, probably by the employer or on person, that that person's legal and there's no further action needed. That's what I've been told, but to your point on the federal, if you're truly an asylum candidate and you didn't have that, obviously, that was part of the process you're in, though, that would be vetted out there at the magistrate level.
Senator Hinojosa: Thank you, Senator Perry—
Senator Perry: Thank you.
Senator Hinojosa: —for answering my questions.
Senator Perry: I appreciate the questions.
President Pro Tempore: Thank you, Senator. For what purpose does the Senator from El Paso County rise?
Senator Blanco: Question for the author.
President Pro Tempore: Do you yield, Senator Perry?
Senator Perry: I yield.
President Pro Tempore: Senator, you're recognized.
Senator Perry: My friend from El Paso.
Senator Blanco: Thank you, Mr. President.
Senator Perry: We had a little bit of a conversation that this was coming and—
Senator Blanco: Right, right, I appreciate that.
Senator Perry: —alright.
Senator Blanco: Just, I just have a clarifying question, I do have an amendment, but I, if I can get some clarity here, I'll probably withdraw the amendment. But when you're looking at Article 5B.001 of the bill, subsection (1) prohibits enforcement at a public, private, primary and secondary school, is that, that's correct?
Senator Perry: Yeah, I think what we're trying to hit on there. First of all, you know in our public schools you don't get the option to ask immigration status. You take all kids, rightfully so, we want our educated workforce, we want an educated populace, and so, we don't get to ask the immigration status first of all. And I, and I respect that. I don't want kids caught in our, I don't kids caught up in our world. Right? They need to be kids, so it provides that exemption for the kid, the person, doesn't cut, exempt the whole thing, but if a kid is on campus at one of those, they're exempted from this, this particular law.
Senator Blanco: Right.
Senator Perry: And you know, we don't have laws for under 10-year-olds in this state anyway.
Senator Blanco: Right, right. Okay. The reason I ask, there's been some confusion and some concern from parents and teachers about kids' transportation that are part of the schools. So, this is in a school bus or in a school bus stop, is it your intent that, that this subsection also extends to the kids in school buses?
Senator Perry: Sure, so if kids are transporting in school buses to and from campus and stuff, obviously, I think the intent, for sure, is that that child, that kid if you will, is considered exempted under the public school. It's more not about the actual physical location. It's more about a public school or private school or secondary school-aged kid is not going to be subject to being arrested under this bill.
Senator Blanco: Those were my questions. Thank you, Mr. President.
President Pro Tempore: Thank you, Senator. For what purpose does the Senator from Travis County rise?
Senator Eckhardt: To ask questions of the author of the bill.
President Pro Tempore: Do you yield?
Senator Perry: I yield.
President Pro Tempore: Senator, you're recognized.
Senator Eckhardt: Thank you so much, Senator Perry. The line of questioning that Senator Huffman had was particularly interesting to me. I think she raises good points with regard to the authority of the magistrate in determining the probable cause of the arrest because that's different from determining the merits of the case.
Senator Perry: I agree and, again, the OCA amendment that I will put up and accept clears up all of those jurisdictional issues that we didn't have when we filed the bill. We had included everybody we thought we had, AG, everybody had conversations about the bill and the merits and how it will all works and what we think we've got and OCA raised that issue after the fact so that the amendment is coming that clears up all of the magistrates role, duties, and it mirrors exactly what we intended to do was the existing process. We didn't, we didn't want to inadvertently change a process because we're intending is not to change the process.
Senator Eckhardt: I'll be interested to see it. Senator Huffman also raised an interesting question which I want to explore a little more in a different fashion. With regard to the mandatory, the mandate on the judge to order the individual leave the country either at the time that the case is dismissed or after the time that the individual has served their sentence. Is there a, is, do you anticipate an amendment that will fix that issue with regard to ICE holds, with regard to possible other offenses discovered or investigated after the adjudication of this offense?
Senator Perry: I do not see an amendment needing to clarify that because the existing process probably has those established communications anyway. You're familiar with the SB 4, 412(g), and all of those provisions that certain counties adopt and some don't. I believe the communication that currently is ongoing and exists with our federal partners will continue, and I base that around the fact that we now have trespassing laws in the state where if you're on private property you can do time and then from that time served the border patrol or someone might pick you up. I don't think that we short circuit it by saying we'll take you back to the foot of that legal entry bridge if there's border patrol issue or some federal partner that says we really want that person. I'm almost certain that that communication exists. As far as we're not physically taking them across the border and there's going to be border patrol interactions and I don't think these people are going to be out of the system on a federal level when we get them into the database. So, I don't think there's anything to clarify. I think the existing processes are meant to be untouched and I don't think they will, and I think, actually, you may garner some attention, right, from the federal partners to have those conversations when we pick up folks that have some other problems associated with their history.
Senator Eckhardt: And I know that is your intention to create a better partnership, a more effective partnership with the federal government. So, why not just transport these individuals into federal custody from the get go and not generate two brand new crimes that are, that are only applicable to people from other countries?
Senator Perry: I don't think it would serve, one, as deterrent that it's intended to, that there's a way to enter this country legally, and you need to have that conversation with the folks that can help you get through that process legally. If you're not supposed to be here and you choose to do it illegally, it doesn't matter which port of entry you take, you're going to get in that trap, and I would say a large part of those people that are coming over between ports of entries know that. So, I'm not for having a state jail time served and then turn around and releasing them into another custody where they've already filled their state role. There's really no reason to hold them back but we do encourage them and expect them to go back to their country of origin. It wouldn't make much sense that we would hand them over to the border patrol to take them back. It just doesn't do that, so.
Senator Eckhardt: Let me explore that for a moment. Let me unpack that idea. Since, since under the provisions of this bill a judge shall not abate a process because an individual intends to or has an asylum claim, doesn't that create the kind of catch-22 that you want to avoid where we prosecute an individual who intends to or is in the process of asylum only to adjudicate them and then turn them over to immigration in any case?
Senator Perry: So, as a practical matter goes, what my basic understanding of what happens today is you can get asylum granted from your home country so you leave your home country with the asylum status attached to you, basically. So, if I'm seeking asylum in the U.S. and my home country decides I can have that status, they will help me on that end before I come across. If you come across at a legal port of entry, part of the process, before you now come in to this country, is determining whether you are an asylum candidate or not. So, if you follow the legal process of going over the bridge, you will have that asylum status noted and the process would begin. You don't get it, there's a whole lot of things you got to do to shore that up, but you would never be arrested—
Senator Eckhardt: But they—
Senator Perry: —first of all if you came—
Senator Eckhardt: —they may have to endure a state arrest and—
Senator Perry: No.
Senator Eckhardt: —prosecution before they ever get to make the asylum claim to prove up—
Senator Perry: No.
Senator Eckhardt: —that they—
Senator Perry: And—
Senator Eckhardt: —have been ejected by—
Senator Perry: —you got a, you got to remember that this is for people that are entering between legal ports of entry. If I truly believe I am a candidate for asylum, I should be going over the bridge. And if I don't and I get caught in this illegal entry, under this bill, and I believe that is something I should be granted and availed to, then the magistrate will work through that process and determine that you might be or not be, but that's not his job, we don't grant asylum. And probably, I think, most people would just say if you legitimately think you are and the magistrate says you probably do, they will have that border patrol or the ICE or those federal agencies enter in. That person's not going to see a jail cell if they qualify for asylum under the practices. Nobody wants to put someone in that's legitimately due a status. But here's the, here's the important thing—
Senator Eckhardt: But, but—
Senator Perry: —they can have that status started if they choose to enter this country legally.
Senator Eckhardt: —but I believe that because this bill, your bill, says that a judge may not abate the proceeding based on a current asylum claim, that even if an individual does enter between two ports, illegally, but has succeeded in proving up an asylum claim, despite the fact that they didn't come through a, initially, through a legal port—
Senator Perry: So—
Senator Eckhardt: —judge cannot abate this criminal procedure.
Senator Perry: So, the bill, specifically, pretty much, addresses asylum by you have to have it granted.
Senator Eckhardt: Right.
Senator Perry: You have to have it granted.
Senator Eckhardt: But do you see how this could be a catch-22?
Senator Perry: I, no, I hear you but it started with, and you've got to remember, it started with someone illegally entering the country. If someone believes they truly are a candidate for asylum, they should come over the bridge and have the conversation with the federal partner. I believe I'm asylum seeker, and at that point they go off and do their processes. That person never sees the opportunity to be arrested under this offense.
Senator Eckhardt: I want to switch over to the line of questioning that Senator Hinojosa had, which was so important having spent a lot of time—
Senator Perry: And you and I've had that conversation.
Senator Eckhardt: We have, we have. And I respect your position on this. This is a troubling area for counties, particularly. Senator Hinojosa laid out so articulately that there really are just over 90,000 county jail beds. And when we consider that most of those county lockups are more than 70 percent full with people who are truly a public safety threat because of drugs, violence, and in some cases, mental health issues that have made them a danger to themselves or others, which the state has not built enough beds for, so you could see how counties would be concerned that in addition to absorbing the humanitarian crisis of a flow of immigrants that are fleeing drugs and violence and poverty, that they would also be called on to absorb the jail bed days, in addition to the jail bed days that they are absorbing for people who are incompetent to stand trial, because we haven't provided those beds and those people are Texas residents. So, what can we do to assure those counties? I, I understand you've said that we've, we've laid aside, is it 11 billion at this point?
Senator Perry: To date we've spent, with this bill that we pass today, almost $12 billion in total since 2011 when I came to this, this body.
Senator Eckhardt: And I know you have voiced concern.
Senator Perry: And that's not including Medicaid and criminal justice and public education.
Senator Eckhardt: Umh hmm.
Senator Perry: Those are the indirect softs that we don't have tracked, but you can, we're, I think it's reasonable to say you probably got a $20 billion tag at Texas taxpayers today.
Senator Eckhardt: And I know that you have expressed concern about the effective use of those dollars, and to put a comparison number on this, Harris County sent out some information that the jail had to absorb, if the jail had to absorb 5,000 inmates for 30 days under House Bill 4, which is a reasonable speculation in Houston. If Harris County absorbed 5,000 inmates for 30 days, the cost to Harris County taxpayers would be $15 million for that 30 days, and an additional 1.5 million per case. So, if you're assuming one case for each one of those inmates, that's $7.5 billion. So, what do we do for our counties to assure them? I know you, it's not your intention that the counties would absorb this cost. What can we do to assure them that they won't?
Senator Perry: Well, I, I'd say it this way. I've said it, I think everybody on Finance has said it. We've had the conversation about it and the numbers are kind of a real—
Senator Eckhardt: Staggering.
Senator Perry: —awakening and they're, and they're staggering. I would say the same thing. We have committed as a state to cover those locals costs as they occur. If they get out of hand, we'll come back and have those conversations. Obviously, clearly, if this law has that impact, which it can, I'm not arguing the fact that we could wake up and have those kind of numbers, realistically, I don't think practically it probably happens in that way. But if it were to happen, then clearly the state must respond in a way that is yet to be determined, but I don't think that we don't have options. There will be many options, conversations, and other discussions. We have revamped some jails to meet the diversity of this population base that we could anticipate being incarcerated. And they're a lot different than, than our general population, but they're intended to meet the needs and the detainees' status too, until all these processes work out. I have enough confidence in this Legislature, this Member body, as well as the word of the Governor and the folks that control those dollars a lot of times that that's a commitment we've made to the locals. I will tell you when this first came out I talked to my local sheriffs. They were pretty alarmed about the House version for sure, and I'm not beating that up, it was just the first version. Right? And we hadn't had time to think about this stuff. Now that you kind of have an option to go through it, the interiors probably not the borders do have absolutely 100 percent unequivocally they're going to have additional new costs. Is 100 million enough? I, I said it in the hearing, I don't think it's enough. But we will get there if we have this problem, but it will probably be a more, conversation about how do we get our older prisons that we have shuttered for different reasons back online and, and have them meet jail standards to be able to hold that. That won't be immediate. We'll still struggle through and limp through. But listen to the conversation. We're talking about 75,000 people that came here illegally, some looking for opportunity, some fleeing from bad things. But there's a component of it that nobody denies that are coming here for ill, evil initiatives.
Senator Eckhardt: And those actually would be prosecutable under existing penal provisions. Correct?
Senator Perry: Well, if we—
Senator Eckhardt: Trafficking and fentanyl.
Senator Perry: —if we're not actually logging and tracking, and have a state jail offense that where we could kind of have that background conversation on those illegal entries, we're not getting everybody. This is going to get us closer to, we'll never get 100 percent, but it's going to get us a lot closer to more people that we are tracking and testing and looking for those background issues. You know, 169 on the terrorist watch list in the last 11 months is a scary number for me.
Senator Eckhardt: I believe that the preponderance of those individuals were actually coming in from the northern border of Canada.
Senator Perry: I think I heard the number and it was a percentage, but it was not the majority, I don't think, is at least the number was given, but I won't argue over stats. The fact that they're here and came through our borders north, south, this initiative, I don't care which border you're on, we have a obligation to protect. And Texas has spent money after money after money trying to address this in a positive way, and I think this is a positive way. I think it is a positive way that we will send deterrents, hopefully, because what I did notice over the last 10 years, it's really strange when a federal initiative has the effect of deterrent. It gets spread back through that community all the way down to South America really fast, and the, and the flow stops.
Senator Eckhardt: It's—
Senator Perry: The Remain in Mexico policy, the flow stopped because they said hey, the, you're no longer going to make that trek. So—
Senator Eckhardt: —the message—
Senator Perry: —if this has—
Senator Eckhardt: —has been put out—
Senator Perry: —some—
Senator Eckhardt: —the—
Senator Perry: —if this just has some effect then it was worth the, worth the, the initiative because this is truly a civil process. I know it's criminal charges, but it's, it's our civil, it's how we are going to handle a real safety issue that to date, we haven't been able to get our arms around.
Senator Eckhardt: I'll have an amendment later, hopefully, that will address how we can assure our counties that they won't absorb these costs. Thank you very much—
Senator Perry: No problem.
Senator Eckhardt: —for answering my questions.
Senator Perry: Thank you, Senator. Appreciate it.
President Pro Tempore: Thank you, Senator. For what purpose does the Senator from Bexar County rise?
Senator Menéndez: A few questions of the author—
President Pro Tempore: Do you yield? Do you yield?
Senator Perry: I yield.
President Pro Tempore: Senator Menéndez, you're recognized.
Senator Menéndez: Thank you, Mr. Chairman. Thank you, Senator Perry, for agreeing to take the questions. Most of the questions have been asked. It's a, it, this issue, you know, I guess, first let's, let's find where we have agreement. We have agreement that we want to stop criminals of any kind, drug traffickers, human traffickers, people on terror watch lists, that sort of thing. The concern that I have is, got multiple approaches. One is the fact that it appears to me that this bill has some constitutional issues. Have you guys, when y'all were drafting this bill, did y'all consult at all with any constitutional immigration attorneys?
Senator Perry: I'm not aware directly. I've talked to the state attorneys, and those folks that are in charge of defending these type of initiatives that we filed. I will tell you, I don't know what the constitutional issue could be raised on it because we're not deporting people. That's a federal obligation. We're not determining immigrant status. That's not our determination. It either is or isn't. We're not interjecting into the federal prosecution side. We're setting up a great state criminal offense. If you want to go to the Constitution where I think we have a legitimate argument to make, I'm not arguing an invasion. That is a very complicated term. One word that means a lot of different things to a lot of different places and has military connotation to it. But in that same section it clearly says imminent danger is without deny. We are, and nobody, I think, rational minded people and especially this Member body would, would argue against that we are in imminent danger today on a daily basis with more fentanyl coming in, with the human trafficking. So, there is an immediate threat that, to date, all we see is just more people and just extrapolated to a percentage of those more people that that threat is real, and it continues to grow, not to mention the financial burden on social services, not to mention the Medicaids and the public school. So, there's a real financial cost to it, that's not the imminent danger. The imminent danger of today is all of the, all that would be, hopefully, a very, very small percentage of that. We can't ignore it based on it's a small percentage because, as I reminded people the last conversation in this area, 19 people changed the world we lived in from 15 different countries. Nineteen people, literally, changed the world with an event and two trade towers. So, it doesn't take many to disrupt the world.
Senator Menéndez: And those 19 people, didn't most of them come into the country legally?
Senator Perry: I don't know. I—
Senator Menéndez: They, they overstayed their visas in some instances.
Senator Perry: They did, they weren't here legally. They, they—
Senator Menéndez: No—
Senator Perry: —came in legally but my point, I guess, is the, the premise that 169 is bad, but maybe they're not, there's not that many of them in the population. I don't think we can make that decision. I don't think we know that because we don't have systems to track everybody coming through the process.
Senator Menéndez: So, the bill requires a suspect crossing through a non-port of entry to be an alien as defined, and I'm not even going to go into the section it could, but, that's the term that it's used. Right? It, it defines someone as an alien because then someone has to make that determination because alien means a person who is not a citizen or, a citizen or a national of the United States. So, how would the peace officer make that determination?
Senator Perry: So, let's—
Senator Menéndez: They don't make the determination.
Senator Perry: —so, if I'm entering through an illegal process, between two legal ports of entry, if I choose to come across, and I am going onto private property whether I'm legal or not, alien or not status, I have committed a state crime because I have now trespassed on private property. If I own the property, I'm good but I didn't have to be an alien to commit that crime. Right? So, if I come across and an officer or DPS person, whoever that state person is, sees you crossing that way, that in itself is enough to establish reasonable cause, suspicious, that you will then have that conversation as to what your status is. And you'll have to prove it up. But it's not, I want to be clear if that's a trespass to a private property, it doesn't matter whether you're alien or not. You've committed a state crime.
Senator Menéndez: So, the bill calls for a peace officer. And doesn't a peace officer in Texas, obviously, include DPS, a county officer, a city police, but doesn't that also sometimes include even a school resource officer?
Senator Perry: I would have to explore that code section. I don't think a school resource officer necessarily is a peace officer. There's specific training and licensing. They may be a peace officer, I don't think they're required to. So, I don't think I want to mix those terms. I'll just tell you if that's important to you I can—
Senator Menéndez: Yeah.
Senator Perry: —get someone to check into that pretty quick.
Senator Menéndez: I, I think it, it to me it is important and I'll tell you the reason is that it's important is because we sometimes will put words on a piece of paper and we'll, we have our, the desire that we want, the desired outcome. And then sometimes when people take that law and put it out into practice, they use it a completely different way.
Senator Perry: And I respect and appreciate that. And you know, there's a, there's always one. Right? But in your context, a school resource officer, I think what you're probably trying to hit at is they would be in a school environment. We specifically exempt kids from being arrested under this bill in a school environment.
Senator Menéndez: What about their parents?
Senator Perry: If their kids are on campus and the parent's there, is picking up that kid, those are exempted because they're on the school campus.
Senator Menéndez: Alright. Thank you for taking my questions.
Senator Perry: No problem.
Senator Menéndez: Thank you, Mr. President.
Senator Perry: Thank you. Appreciate it.
President Pro Tempore: Thank you, Senator. For what purpose does the Senator from Bexar County rise?
Senator Gutierrez: Sorry, Mr. President, will the gentleman yield for a few questions?
Senator Perry: I will, Sir. Appreciate it.
President Pro Tempore: Senator Gutierrez, you're recognized.
Senator Gutierrez: Thank you, Mr. President. I'm sorry for the inconvenience. I was putting my email into a phone. I have so much to ask, Chairman, so many questions, so many notes. How much is too much? You asked that earlier.
Senator Perry: We got 29 days left of a 30-day special session.
Senator Gutierrez: Oh, we think we got some time?
Senator Perry: Yes, Sir.
Senator Gutierrez: How much is too much? You talked about, I guess, people dying, kids dying. Correct?
Senator Perry: Correct.
Senator Gutierrez: Tools in the toolbox, that's what we heard Chairwoman Huffman say. Correct?
Senator Perry: Correct.
Senator Gutierrez: About 400 yards of buoy, not a whole lot. Right? Just another tool in a toolbox. Right?
Senator Perry: Tool in a toolbox.
Senator Gutierrez: But that tool in a toolbox, what this Governor did, and DPS did, is they put it in the shallow part of the river where a woman drowned trying to save her daughter and her other child died. How much is too much?
Senator Perry: That's a tragedy. I'm—
Senator Gutierrez: Tragedy? Is that the right kind of immigration policy in your mind?
Senator Perry: Do what?
Senator Gutierrez: Is that a right kind of immigration policy in your mind?
Senator Perry: I think you've heard me say, I'm not sure we found the magic mix, but it is a deterrent from people entering illegally, so it is part of the infrastructure piece of that three-legged conversation.
Senator Gutierrez: Yeah, people dying along the river, being drowned because of that, razor wire on the border, it's interesting about that razor wire, another tool in the toolbox. When was the last time you went down to the border?
Senator Perry: It's been a few years, actually. I've been down there three times, but I can tell you I haven't been down there late.
Senator Gutierrez: Have you seen the, have you seen the border buoys in Eagle Pass, in my district?
Senator Perry: I've, just pictures on the TV and whatever testimony.
Senator Gutierrez: So, you got the buoys in the shallow water, they kick the migrants out to the deeper water where many have drowned. How much is too much? But then you've got this razor wire, and it's leading them down this clearing along the Texas border. Do you believe that people are tribal?
Senator Perry: It's human nature to assemble.
Senator Gutierrez: Human nature to assemble.
Senator Perry: Hopefully, it continues. That's a good trait.
Senator Gutierrez: Do you believe police are tribal, law enforcement, different entities are tribal?
Senator Perry: Yeah. Sure, I think, I think we're a tribe if you want to call it a tribe, if people that have like minds most of the time, not all the time. This is one of those days and it's unfortunate.
Senator Gutierrez: Well, that's right.
Senator Perry: This is not what I nor any of my colleagues want to need or have to do, but we have no options to do what we believe is the best course to try to save the public safety first. You know, your examples are tragic. Nobody, nobody wants to see innocent people lives lost. But I'll remind you, there is legal entry. There is ports of entry where they can come across legally and have the conversation they seek about coming into this country. I'll also remind you that they traveled many, many miles risking their lives with their kids' lives long before the buoy. And they also chose to do that.
Senator Gutierrez: Yeah, we'll get to that.
Senator Perry: So.
Senator Gutierrez: Cops are tribal. Right? Yes, Sir?
Senator Perry: You know, I know where you're going I think, but it doesn't matter where you're going. People, people, fortunately, this is fortunately, but it's not becoming, we're losing this. People like to be around people and they like communication, and they like that. So, absolutely, if your definition of a tribe, tribal, if your definition is people assembling with like-minded goals normally or a mission, then, yeah.
Senator Gutierrez: I don't, I don't—
Senator Perry: I can tell you my CPA firm with 15 employees is, quote, a tribe in the CPA office that I serve, because if a tribe is we get along and like to be around each other. I don't know what your definition of tribal is, but I wish you just would get to your point. What's the question?
Senator Gutierrez: Hey, I'm glad, I'm glad you know where I'm going. Sometimes I don't know where I'm going.
Senator Perry: I'm just asking what's the question with Senate Bill 4, specifically?
Senator Gutierrez: Alright. Fair enough. I'd rather sit here and commune with you and talk about water, but we're not doing that.
Senator Perry: I had, too.
Senator Gutierrez: But here we are. Since you haven't been down to the border what happens is once they make it to the Texas side of that water, what they do is they walk down to a clearing. And at that clearing you've got the tribal cops, federal cops, and the state cops, and the federal cops say go over there, go talk to those people. And those people are the DPS troopers, and those people, Senator Blanco, happens in your community, too. Senator Hinojosa, happens in your community. And those people are on the private property side. Oh, hell, all of a sudden you're criminal trespassing. All these people wanted to do was to walk to a port of entry to say, asilo político, I'm here to claim asylum. But your bill doesn't allow that, does it?
Senator Perry: If they come across the bridge, it allows it because there is a process to claim asylum coming over that bridge. That's a legal port of entry. Your example there, if I was upset with anybody, if the federal government is directing them across to a path that will get them a state felony or a state crime in trespassing, that's not the state. The state's just doing what we asked them to do. The feds direct them there. If they want to not have that, they can set their shop as a federal somewhere else, but the fact they chose not to come into this country legally over a port of entry that everybody recognizes is where you claim your asylum status at over, before you come over now and then continue the process once you claim it.
Senator Gutierrez: I'm just that people are tribal. Cops are tribal.
Senator Perry: Well, I, we can go that narrative. It has no purpose. Senate Bill 4—
Senator Gutierrez: It's not a narrative. You have lots of narratives. Everything that you say you have some narrative. You don't believe that people get pulled over for broken taillights. According to you it doesn't happen. That's what you said, it does not happen. I wish you were Black and I wish you were Brown so you would know that it happens, Sir.
Senator Perry: I hear you.
Senator Gutierrez: It happens.
Senator Perry: Same argument.
President Pro Tempore: Please do not insult the Senator.
Senator Gutierrez: What did I say? How did I insult the man? Did I insult you, Sir?
Senator Perry: So, you're right to your own opinion. I just have more faith and trust in the people that wear the badge and the gun. That one or two incidents that you have had over the last hundred years of civil rights conversations, it may happen. But I'll tell you when it happens we have processes in place to prosecute the cop that did it. And if those don't work, and I know that everybody in your world is bad and that there is no rules and laws that apply to the guys with the badge and the gun. That's fundamentally false, it's not true. I know a lot of good people that enforce civil rights to the letter, every day, diligently. If one gets out of the box, we have a remedy for it. So, if we want to go there, you're just basically going to say everybody with a badge and a gun is bad.
Senator Gutierrez: Your bill doesn't allow for civil rights, Sir.
Senator Perry: Oh, yeah—
Senator Gutierrez: It doesn't allow for—
Senator Perry: —the bill is not—
Senator Gutierrez: —does your bill allow for a defense against the Convention against Torture?
Senator Perry: This bill changes nothing regarding civil rights or due process or probable cause or suspicion.
Senator Gutierrez: Does your bill allow for an affordable, an affirmative defense for a Convention against Torture claim under the United Nations? Yes or no.
Senator Perry: What is the current law today?
Senator Gutierrez: Federal law allows someone to go out to a border agent of any sort and say I want asylum, or I have a claim because I've been tortured in my current country. Is there such a claim, an affirmative defense, in this bill? Yes or no.
Senator Perry: If you come across legally on a port of entry, the feds can have that conversation. I'm creating two state offenses to defend what the public of Texas and this country is facing if we don't do our job.
Senator Gutierrez: But there's no abatement in this bill.
Senator Perry: We're not changing any of the federal law.
Senator Gutierrez: Sure you are.
Senator Perry: We are not.
Senator Gutierrez: Sure you are.
Senator Perry: We are not.
Senator Gutierrez: Because if you come into this country, no matter whether you came in between the border or at the border, you get to claim political asylum. Yes or no?
Senator Perry: My understanding is political asylum is granted from your home country before you leave, and when you get over here, you can claim asylum and start your own process if that was not available to you.
Senator Gutierrez: Your understanding, your understanding is false.
Senator Perry: Okay, it's flawed possibly.
Senator Gutierrez: It's not flawed. It's false.
Senator Perry: I'm not an immigration agent and this bill doesn't touch that.
Senator Gutierrez: It's false.
Senator Perry: What I'm telling you is this process—
Senator Gutierrez: You're allowed to claim within one year. In the United States, you're allowed to claim political asylum. Are you aware of that?
Senator Perry: The bill says it has to be granted.
Senator Gutierrez: Precisely. And so, therefore your bill doesn't allow anybody to be able to make a claim for political asylum, it just jails them.
Senator Perry: It potentially gives them an opportunity to have that conversation at the magistrate level before they're jailed. If they meet that, it is exempted. In this bill, it is exempted for someone that proves they are a candidate for asylum when the feds come.
Senator Gutierrez: And then what happens, Sir? Does the, does the magistrate call the local immigration judge, do they call ICE under your bill?
Senator Perry: There is no arrest if you meet the qualifications of asylum underneath the federal law today, it did not change that process.
Senator Gutierrez: Under your bill, who's going to interview them to see if they have asylum? I'm just asking questions, Sir.
Senator Perry: I'm telling you as a practical matter, when they go before that magistrate, if that's a legitimate argument and a defense that could be available to them, they will have counsel. They will have resources to explain to the judge or to the magistrate at the time that this is something I am claiming as an affirmative defense that is allowed under this bill that then will be followed through by whatever process there to go and have that person get into the asylum world.
Senator Gutierrez: So, you're telling me right now that your bill is going to give them a court-appointed lawyer from, because I don't see that in the bill, a court-appointed lawyer from the time they reach the magistrate's office to determine whether they have a claim for asylum or the Convention against Torture or a possible 42B claim, I know you don't know what that means, but you're going to give them a court-appointed immigration lawyer?
Senator Perry: At the magistrate level they will have interpreters, and if they ask for an attorney, although those cases are currently being litigated, it is potential they will have counsel there. But it will be at the judge level where the counsel will be provided under any due process.
Senator Gutierrez: Okay, I'm just wondering. So, you're telling me two different things, because it's not in the bill. So, you're okay with them having immigration counsel? We can have an amendment that appoints immigration counsel to them. That's what you're telling us right now.
Senator Perry: The defense of asylum seekers is provided in the bill. The process in which that ensues, I am not going to tell you. I can give you the fine detail of how that works, but it will be available because it is an affirmative defense, and whatever process that establishes that person's legitimate claim to asylum will be engaged.
Senator Gutierrez: Do these people get a court-appointed lawyer? Yes or no.
Senator Perry: No, not automatically, not at the magistrate level.
Senator Gutierrez: Okay.
Senator Perry: At the magistrate level, I've had conversations that it does or does not, at the magistrate level. It's kind of a mixed, I'm told—
Senator Gutierrez: Well, that's fabulous. Hey, listen, that's the first time I hear that. I'm sure we're all surprised to hear that everybody gets a lawyer at the magistrate lawyer, level.
Senator Perry: It's available at the magistrate level.
Senator Gutierrez: Staff, if you're listening, draft that amendment right now.
Senator Perry: So, it's available but not automatic, is what the Office of Court Administration has told me.
Senator Gutierrez: Okay. Are you going to allow them to have an immigration lawyer court-appointed to them at the magistrate level in this bill? Yes or no.
Senator Perry: It's currently not changing any of the processes at the federal level.
Senator Gutierrez: No, that wasn't my question, Sir. I asked a very simple question.
Senator Perry: If the process to establish a legitimate asylum-seeking individual allows for that, it didn't change that.
Senator Gutierrez: Okay. Well, it doesn't.
Senator Perry: Okay, well then—
Senator Gutierrez: Under this bill it doesn't. So, I'm asking you to answer this question because you're telling me two different answers. Will—
Senator Perry: No, I'm really not.
Senator Gutierrez: —I don't want to speak over you, Sir.
Senator Perry: I hear you.
Senator Gutierrez: I'm simply asking the questions, I know you want to get chippy with me and try to insult me. I'm just asking the questions here. And you can answer the questions and I don't want to speak over you. My question is simple, will people be allowed an immigration lawyer at the time that they receive, that they approach the magistrate? Yes or no.
Senator Perry: So, line 21, actually line 19, it is an affirmative defense to prosecution under this section that, one, the federal government has granted the defendant, (a) a lawful presence in the United States or (b) an asylum under 8 U.S.C. Section 1158. Two, the defendant's conduct does not constitute a violation of 8 U.S.C. Section 1325, or the defendant was approved for benefits under the federal DACA Act between those deadlines that had that brief, weird exemption period and a couple others.
Senator Gutierrez: I appreciate that.
Senator Perry: I did not change how an individual would claim asylum nor be granted asylum in this bill. So, if your question is, am I going to require an attorney for this purpose, I will follow whatever the process is currently being followed. At the magistrate level, you can but not required to provide counsel. This bill does not provide counsel at the magistrate level.
Senator Gutierrez: Okay. Now we're getting to the answers.
Senator Perry: It doesn't.
Senator Gutierrez: Okay.
Senator Perry: But it didn't change what the federal process of claiming asylum is either, so if they do, they still have that right.
Senator Gutierrez: Well, that's not entirely true because your bill also says they cannot get an abatement on their claim if they have an asylum claim. And it doesn't mention anything about Convention against Torture claims, does it?
Senator Perry: No, does not, but it doesn't change existing law. If the federal law has it in there, it doesn't change.
Senator Gutierrez: It doesn't mention anything about a 42B claim. Let me explain to you what a 42B claim is. To Senator Hinojosa's point, I'm not as eloquent as Senator Hinojosa, and I apologize to you if you think I'm being aggressive here.
Senator Perry: You're not. I mean, it's legitimate policy conversation. I can only tell you we did not change federal law.
Senator Gutierrez: A 42B claim, Senator, is a claim when someone is arrested in Dallas or Houston or San Antonio or, for that matter, Eagle Pass or McAllen, Texas, and they've been here for more than 10 years, for more than 10 years, and they have a U.S. citizen child or a U.S. citizen wife, but they came in undocumented, but they've been here. They didn't get caught by anybody, just living in the shadows. When I as an immigration lawyer go to defend that person, Senator Perry, I get to go over there, and I say, Judge, this person has a 42B claim, I have cancellation of removal. And I have to prove that, I have to prove the continuous presence, uninterrupted, for 10 years. I have to prove there's been no crime, and I have to prove that there's a substantial U.S. contact, a child or a wife. And so, when I do that I get relief, my client gets a bond. Down the road I'm allowed to process that claim one way or another. There is no affirmative defense for that in this bill. Correct?
Senator Perry: Not an affirmative specific to section 42B, but again, I do not change any defense available through section 42B or a federal process of handling immigrants.
Senator Gutierrez: So, then you will not have any problem putting an affirmative defense amendment for 42B or a Convention against Torture claim. Correct?
Senator Perry: I would have to do some research before I could tell you yes or no. I did not change any federal processes. And that would be a defense that ultimately the courts would avail.
Senator Gutierrez: But you do change federal processes because when a person gets arrested by a federal officer, they first sit down for an interview and they talk about, they get a question, are you asking for asylum? They say, okay, let's talk about it. The person says asilo politico. Right, Senator Hinojosa? That's what they say. And then they get interviewed for something called a credible fear interview. That's allowed under federal law in the first year. Wherever you are, in Dallas or Houston or wherever, and in that scenario you determine, the court determines, or the foreign immigration officer determines if they have a credible fear of returning home. But that's not in here, there is no officer, there's just the local cop from wherever, border town or Dallas or Houston, he grabs this person, and I also have the same concerns that Senator Hinojosa has about driving while Black and driving while Brown because we've seen that in this state. And I'm sorry, I apologize to you, if I would've insulted you by saying you're not Black and you're not Brown. I apologize to you. But these are real things that our community deals with, that we deal with. And so, when we see bills like this it is of particular concern. I think that this bill is going to be challenged for many, many constitutional imperfections, but let's go on. You and I can both agree on one thing, our immigration system in this country is broken. Yes?
Senator Perry: I will agree 100 percent that it is broke.
Senator Gutierrez: This President didn't break it. Right?
Senator Perry: This broke, it's been broke for decades.
Senator Gutierrez: The last President didn't break it. Right?
Senator Perry: Been broke for decades.
Senator Gutierrez: As a matter of fact, of the last three presidents, the one that deported the most was President Obama.
Senator Perry: It's been broke for decades.
Senator Gutierrez: That's right. And the United States Congress, both Democrats and Republicans, have failed to fix this. Correct?
Senator Perry: One hundred percent.
Senator Gutierrez: We can agree on that. Words are important and what we say matters. And when you say that the last President's Remain in Mexico policy was effective, I have to tell you what that policy did. And I know this bill is new to you, and I'm not suggesting you don't know all of these issues because I know that you do, and you're a very smart man, and I respect you greatly. Donald Trump utilized something called Title 42, which was a health and safety protocol based on COVID. You're aware of that.
Senator Perry: Correct.
Senator Gutierrez: The Remain in Mexico policy. Last May, this President instituted Title 8. Title 8 is our current immigration law enforcement policy. That's the law enforcement policy. Correct?
Senator Perry: Correct.
Senator Gutierrez: Would it surprise you to know, because words are important, and the words of Fox News and everybody uses are often, I find it often intriguing, catch and release. I hear that so much. And what does that mean to you?
Senator Perry: So, you've raised a conversation with another Senator and you've taken it out of context.
Senator Gutierrez: Okay. What does catch and release mean to you?
Senator Perry: Catch and release is the term used for identifying an illegal, having a conversation, and then putting him into a system that basically says come back on your own recognizance with a bond. It's kind of the practical application of the way I understand it, that they actually are put in a system for processing, they're being processed but they're also released in hopes that they'll show back up to a court somewhere in the future.
Senator Gutierrez: The vast majority of migrants, the vast majority of migrants—
Senator Perry: I can't tell you what the demographics are, you asked me what I believe catch and release was. That's what I believe it is.
Senator Gutierrez: When we, when Republicans or people on TV like to say catch and release, those are migrants that have been processed, that have gotten credible fear, and have been released for a future asylum date. Both Senator Blanco and Senator Hinojosa and Zaffirini, she's up in her office I think, all of us look at these numbers just about every day I would imagine. The vast majority of migrants get deported every day.
Senator Perry: That's correct.
Senator Gutierrez: And when we hear, because words are important, Fox News say catch and release, those are migrants. The same migrants that, by the way, that one of the tools in the toolbox, Senator Huffman, of our Governor who has spent $100 million sending migrants up to Chicago and New York and everywhere else. Those are processed migrants that are actually within 90 to 120 days away from getting a work permit. Did you know that?
Senator Perry: Catch and release, according to your question is, what does that mean? We put people in a process that says we will release you on your own recognizance until you show back up at an appointed court date. Now, I haven't got the statistics, and I should have, but what I am told, there is an extremely large amount of noncompliance as far as showing back up. Now we can argue that, but I don't have the data to support that, I've just have heard it. I haven't statistically proved it. So, I won't use that. But the problem with the, quote, connotation as you want to frame it, catch and release is, we are literally not following through up on our current immigration system. But back to the conversation that you are using against me with the Remain in Mexico policy. That was in the context that every time there's been a deterrent of something established, be it this administration, last three administrations, or even a state deterrent, that it seems to have an impact on the flow. So, that wasn't a comment about a specific policy as much as we have to find deterrents to discourage people from coming into this country illegally.
Senator Gutierrez: Oh, you're right.
Senator Perry: That context.
Senator Gutierrez: You're right.
Senator Perry: Not the policy itself, because as you point out, and I agree 100 percent, both sides have failed miserably. And I would argue, well, I won't even say it because it would be kind of an irrelevant but political statement that I don't know what we'd have conversations about it private, in primary campaigns sometime on both sides. I mean, it's gotten out of hand. But that said, this is real life, real people, real impacts. I have empathy and compassion and sympathy for those that are seeking a new and better way. But, unfortunately, we can't tell who those are by the fact that they walk across the bridge or walk across this river that we're trying to patrol, at the risk of letting the one guy that didn't have that motive go in and do something horrible. So, this is what the bill is about, it's public safety about people that we feel, I believe and everybody would agree, we don't have control of the bad guys today. That's all this bill does.
Senator Gutierrez: Let's put the cat, the Remain in Mexico policy, to bed and that it didn't work. And it didn't work because it actually allowed people to come in, let me finish, with impunity into this country without tagging them. Under Title 8, a migrant is arrested, you notice I don't call them aliens by the way. A migrant is arrested, okay, and they are tagged, and they are processed and they are fingerprinted. Upon illegal reentry, they actually spend more time in prison under federal law than they do under your law, under your proposed law. But, let me finish, under that Remain in Mexico policy, men and women crossed with impunity back and forth, back and forth, back and forth, without ever being tagged because there was, because Title 8 was being adjudicated and, you know, even our Attorney General, even Ken Paxton fought against the reimplementation of Title 8. And Title 8 was actually the policy that tagged people and allowed us to get the next step on the reentry. Under Title 42, we were more dangerous than we are now. You're not suggesting in your colloquy earlier that 2,700 pounds of fentanyl came in on the backs of people coming over here looking for a dream are you?
Senator Perry: No, correct, 27,000 pounds.
Senator Gutierrez: Twenty-seven thousand pounds.
Senator Perry: I wish it was 2,700. Twenty-seven thousand pounds.
Senator Gutierrez: It didn't come in on the backs of some migrant looking for a dream. Right?
Senator Perry: I don't know how far the cartel's gone and how, innocent people being mules under the threat of pros– of, of killing their relatives, I'm told is the scenario. But it doesn't matter how it came in, the fact that it came in is the issue of the day.
Senator Gutierrez: That's right. So, you're not in any way related to somebody that builds homes by a company called Perry Homes. Right?
Senator Perry: Not relevant, but no, Sir, I'm not.
Senator Gutierrez: And you're not related?
Senator Perry: No, I'm not, but that's not relevant.
Senator Gutierrez: Well, it is relevant.
Senator Perry: It is not relevant. If you're going to the workforce that they're filling, absolutely. We are dependent upon a migrant workforce, there is no doubt. But that does not excuse the illegal entry to this country to fill that void. And, honestly, you raise a good point, and I've made this point before. If we didn't have it, I don't know what our industry groups would look like. But I can't ignore the rule of law for the name of industry economics. But, no, I'm not related to—
Senator Gutierrez: And that's my point. Your bill, if somebody's working for Perry Homes, some subcontractor putting a roof on in San Antonio, Dallas, or Houston, or wherever that is, has migrant laborers working out there and they been here for 10 or 20 years, this is a bill, this bill applies to them, too.
Senator Perry: There'd have to be probable cause to have that conversation. And if I'm not mistaken, in Lubbock, Texas, my framing crews a lot of times, immigration federally shows up on those sites and has the same impact that you're speaking to today. So, it's not this bill that created the opportunity to do that thing. The feds are already doing that thing. And as bad and as much as I want those people to have incomes and jobs and livelihood and opportunity, you cannot overlook the other part of the folks coming through with them on the border.
Senator Gutierrez: This bill, I know what you like to say, you'd like to suggest that you need probable cause, but the fact is your bill is specific to migrants, and it doesn't say anything about, I'm trying to find this probable cause piece in here, maybe you can direct me.
Senator Perry: We didn't change probable cause rules. They are still in existence, I didn't change anything in the criminal code, other codes, civil liberties code, it's exactly the same. Probable cause is administered the same outside of this bill as it did before this bill.
Senator Gutierrez: Well, direct me where someone, where the section of the bill where the officer, what the elements are to establish the probable cause.
Senator Perry: I didn't change the rules of probable cause. Whatever the rules are today before this bill will be the rules after this bill. Nothing got changed.
Senator Gutierrez: You would agree with me, first, you have to first have the reasonable suspicion to think that someone is committing a crime. Correct?
Senator Perry: My basic understanding of probable cause.
Senator Gutierrez: Okay. So, where in your bill does it suggest what the elements of that reasonable suspicion is? Is it just being Brown?
Senator Perry: The elements are already defined in our Penal Code and other legal systems, and I didn't touch those, change those, nor would I ever envision changing those.
Senator Gutierrez: So, then how does a person, how does a police officer—
Senator Perry: Question's been asked and answered. I did not change the Penal Code, the criminal, the due process, or the probable cause.
Senator Gutierrez: This is the new law.
Senator Perry: This bill does not address it because it's already in the code and I did not change it, asked and answered. Move on to the next question, please.
Senator Gutierrez: Well, we're not in a court here. I mean.
Senator Perry: Well, we are in the sense of the way you keep badgering over the same issue, the same issue. You're going to get the same answer—
Senator Gutierrez: I want to know how—
Senator Perry: I didn't touch existing law.
Senator Gutierrez: I want to know how a cop knows that some Hispanic person is a migrant. Or in your case an alien, I'm sorry.
Senator Perry: Today, whatever that process is that that cop would employ or not, using his discretion or not, within the confines of a civil liberty system that I did not touch, did not change under this bill, did not. So, if a cop today can ask those questions, he can ask them tomorrow. If he can't ask those questions, he can't ask them tomorrow. I didn't change that world.
Senator Gutierrez: Here is my point, Senator Perry. You're creating a crime here. Okay?
Senator Perry: Illegal entry.
Senator Gutierrez: Senator Hinojosa, if I'm driving down the road and I'm going back and forth erratically on that road, then that police officer can stop me for reasonable suspicion of a crime, of DWI. And then he can formulate after interviewing me whether there is probable cause to arrest me for the arrest of DWI. And so, if I'm putting a roof on in Dallas, and I'm a cop, and I'm driving by, and I see this home being built and there's a whole lot of brown faces that look like me and look like him, putting up this roof, where's, what's the reasonable suspicion for him because there is no precursor here. There is no something that says, oh, he was driving erratically, and then later I found out he was also a Mexican. So, I want to know, I want to know what the elements are that allow a cop to determine—
Senator Perry: Senator Gutierrez, your question is indignant and doesn't even justify a response.
Senator Gutierrez: It's not indignant, Sir.
Senator Perry: It is. It is and it's indignant to the police association and the people that wear that badge because for you to infer that someone's going to drive by a roofing contractor and look up there and say there's Brown people on the roof, by gosh, they must be illegal, I'm going to go arrest them, is absurd and disrespectful and should not be a conversation.
Senator Gutierrez: You are being disrespectful.
Senator Perry: Mr. President, this line of questioning is not relevant to SB 4.
Senator Gutierrez: It absolutely is, Sir.
Senator Perry: It absolutely is not because you are trying to interject a hypothetical that if it were to occur, and sadly it may have, those officers will be sued under the Civil Liberties Act.
Senator Gutierrez: No, Sir.
Senator Perry: Yes, Sir, they will, because they have to show probable cause to have the conversation with the guy on the roof.
Senator Gutierrez: Probable cause for what? That's my question.
Senator Perry: The question of the day is if I'm roofing, did I commit a crime from a vision of a cop looking up, and the answer is I don't think so. And if the cop says so—
Senator Gutierrez: Certainly there was no crime for roofing.
Senator Perry: —so he better have a reason, so the bottom, yeah, it is. You just described a situation where you got people on top the roof who happen to be Brown or colored, that are roofing a deal, and an officer has to have, what would his suspicion or reasonable cause be to go and have a conversation?
Senator Gutierrez: Maybe you're not understanding what I'm suggesting here.
Senator Perry: Your questions are not relevant and they don't make sense—
Senator Gutierrez: They are relevant, Sir.
Senator Perry: —not understanding because you literally are off the page.
Senator Gutierrez: They are relevant, Sir.
Senator Perry: I would, I like you. I respect—
Senator Gutierrez: I like you, too. And I respect you, too.
Senator Perry: —and I think you're a smart mind. But here's what I'm saying to you—
President Pro Tempore: Members.
Senator Perry: —for you to live in this world where everybody with authority is bad because you may not agree with my skin color is just wrong.
President Pro Tempore: Members, let the question be asked, let the author answer. Stick to the contents of the bill. Senator Gutierrez.
Senator Gutierrez: Thank you, Mr. President. I think, first off, let's be really clear. I like you a lot and I respect you a lot. But this is a new crime. And when I'm driving down the road and I'm drunk or driving erratically, the cop gets to pull me over for driving erratically. Then he gets to formulate probable cause. You're creating a new crime for illegal entry into this country. Now I can understand, Sir, if you see someone walking across the water and there they go and they're on the Texas side, reasonable suspicion for this new crime. But what I couldn't ask, what I tried to ask the previous author of this bill and he couldn't answer this before, is if I'm in Houston, Texas, or if I'm in Dallas, Texas, or San Antonio, Texas, this is a new crime. There's nothing in here that says that that cop first has to have reasonable suspicion that I did something else. It's just a crime of illegal entry. And so, I'm trying to figure out what are the elements, the evidence if you will, that a cop could formulate to have reasonable suspicion. I understand walking across the water, but can he stop and ask you, specifically, show me your papers, if you're working on a rooftop in Austin, Texas?
Senator Perry: I'll address it a couple of ways. And you rephrased it, but it's the same premise. First of all, the only ones that get to walk up to you on a roof in Dallas, Texas, your immigration status, would be a federal immigration officer is basically my understanding. If a cop, a law enforcement, municipal, sheriff, or other reason, walked up and asked that question, I think they're going to get in a lot of trouble based on existing law. But to your point, if a person interior to the border, if you don't see them physically cross the water, which is reasonable suspicion, which does establish probable cause to take them in, but outside of the interior, in the interior of the state, if one of those persons are, actually confess to being here illegally or in the event of another crime, other crime, as your example, DWI, that's when that person would have this conversation. But just to wholesale assume that we've thrown away due process, civil liberties, and those functions that we all know are what are practicing today under the premise that this bill's going to change that, is just flagrantly false and misinformation. And if I have led you differently, I have completely misspoke. But we didn't change that. I don't think you're going to see officers randomly having a conversation about immigration status that is not part of an additional crime, unless someone walks up and says, Hey, officer, I need to tell you I'm convicted, I've committed a state jail crime now of being here illegally, and I want to confess that to you. I don't think that's going to happen. If it does, that's reasonable cause or suspicion. But to your scenario, this random conversation about what's your immigration status because I don't like the way you look, I think there's protections for those people, and I think the officers have severe, severe penalties for that.
Senator Gutierrez: What penalties if you committed a new crime, that allows them, there's no definition as to reasonable suspicion in this bill, Sir.
Senator Perry: Reasonable suspicion is a legal theory, a legal crime—
Senator Gutierrez: No, Sir.
Senator Perry: —legal definition has been out there. I mean, most people in the legal community and crime community know what reasonable suspicion is. You knew what it was, you said reasonable suspicion would be I saw someone come across the water. How did you know that was reasonable suspicion because you—
Senator Gutierrez: That is evidence.
Senator Perry: —know what the standard is.
Senator Gutierrez: That's why I'm asking you, you're—
Senator Perry: Well, I'm telling you an officer is not going to have this conversation—
Senator Gutierrez: Okay.
Senator Perry: —without another law, without another crime, asked and answered. I don't know how to address it. We didn't change reasonable suspicion, probable cause, and how an officer operates in that world. I know you want me to say we changed it, we didn't change that.
Senator Gutierrez: But you did, Sir.
Senator Perry: We didn't. But that's okay, difference of opinion. That's why we have debates.
Senator Gutierrez: So, we don't deport anybody in your bill?
Senator Perry: No, we don't.
Senator Gutierrez: We just return them?
Senator Perry: We don't, we don't deport anybody in the bill. We take them to the border and send them back on their way. We don't touch the border. We let them off at the front or at the base of the bridge.
Senator Gutierrez: And if they don't go, then what?
Senator Perry: Then, they have committed another felony under the bill or another offense, and it will become a second-degree felony, I believe, on that offense.
Senator Gutierrez: What if they just stand there in protest?
Senator Perry: Stand there in protest and don't comply with the order to go back to your home? They have committed another felony if they are on this side of the bridge and don't comply with the order. That was the questioning that Senator Huffman and I had.
Senator Gutierrez: Have any other states enacted the crime of illegal entry?
Senator Perry: I'm not aware what other states are.
Senator Gutierrez: Where did this idea come from?
Senator Perry: I think many minds of many days trying to figure out how to address the public safety concerns of the state because of this porous border letting people such as the terrorists, the human traffickers, the cartel. This is an idea, it's time to try different things because just spending more money is not all of the answer. It's part of an answer. But we've got to do something different or at least add another component to the toolbox.
Senator Gutierrez: We've spent a lot of money in this state.
Senator Perry: Twelve billion dollars after this bill today.
Senator Gutierrez: That's a hell of a lot of money.
Senator Perry: Plus, plus the soft cost that we don't track.
Senator Gutierrez: Well, there's also the tremendous, billions dollars worth of benefit that those workers on those roofs contribute to our U.S. economy—
Senator Perry: No doubt, they do contribute.
Senator Gutierrez: That's right.
Senator Perry: But that's no excuse to allow illegal entry or ignorance of the law.
Senator Gutierrez: Is this in response to a national emergency or recent events would you say?
Senator Perry: Well, I would call a national emergency. I can literally tell you that 169 people on a terrorist watchlist is a national, is a national emergency. I can tell you 27,000 fentanyl that kills an average of five Texans a day is a national crisis.
Senator Gutierrez: Listen, I assure you that, listen, nobody wants to hear what I have to say, but I can fix all of this problem. You want to have that discussion, we can go outside and we can have this. I can tell you how to fix, how to have a comprehensive immigration reform plan that works. But that's not what we're doing, we're talking about your bill today. So, do you agree with the following statement that undocumented workers have severely depressed farm wages?
Senator Perry: It's not part of the bill, it's not relevant. I think Barbara Jordan made that argument back decades ago.
Senator Gutierrez: No, I don't think she did.
Senator Perry: I think she did, I think she said that the people that are going to suffer are the people that are internal to this state that are legal citizens are going to have cheap wage labor come in and compete for those. But that's a different conversation, not part of SB 4.
Senator Gutierrez: Well, I tell you what, I'll look into that Barbara Jordan reference and I'll get back to you. Do you agree with, that death and disease rates in areas of high concentration of undocumented workers—
President Pro Tempore: Senator, please keep your comments and questions to the contents of Senate Bill 4.
Senator Gutierrez: I'm just asking him some questions about migrants.
President Pro Tempore: Please confine your comments to Senate Bill 4.
Senator Gutierrez: You do not reference any affirmative defense to Convention against Torture claims or 42B claims. Correct?
Senator Perry: Not specifically an affirmative defense mentioned inside the bill, referenced in the bill.
Senator Gutierrez: I have no further questions.
Senator Perry: Thank you, Sir.
(Floor Amendment No. 1)
President Pro Tempore: Thank you, Senator. Members, the following amendment. The Secretary will read the amendment.
Secretary of the Senate: Floor Amendment No. 1 by Perry.
President Pro Tempore: Senator Perry, you're recognized on Floor Amendment No. 1.
Senator Perry: Yeah, Members, this was talked about earlier with Senator Huffman. I appreciate her due diligence in catching it, but OCA actually caught that it needed some clarity as far as what the magistrate's jurisdiction and duty looks like. The opinion was it probably didn't have to happen, but this makes it clearer what a magistrate's jurisdictional duties would be. With that, I move, it is obviously, move adoption.
President Pro Tempore: Members, the Chair recognizes Senator Eckhardt to ask, for what purpose?
Senator Eckhardt: To ask questions of the author of the amendment.
President Pro Tempore: Senator Perry, do you yield?
Senator Perry: I do yield.
President Pro Tempore: Senator Eckhardt, you are recognized.
Senator Eckhardt: Once the case is dismissed, what authority does the State of Texas have to direct where an individual resides?
Senator Perry: So, the order itself is what that individual would be subjected to. If the order says go back, and the state drops them off at that bottom, but I guess I'm not quite, I don't know quite what you're asking. But the order—
Senator Eckhardt: I guess what I'm asking here is there, is there any other offense in our state's law or any other state's law that can order where an individual may reside as a, as a condition of dismissing a case?
Senator Perry: Well, I'm not, I'm not an attorney.
Senator Eckhardt: I'll give you a hint—
Senator Perry: I'll give you, first of all, the order determines and is part of a new offense that is part of the process that is now allowable under the new offense. To your question, I know clearly where there are people that have been told because of particular offenses, typically sexually, predator type offenses, they have a very clear designated area where they can't go. So, by default we've told them where they need to be.
Senator Eckhardt: That's right, they're told where they can't go. This tells them where they must go.
Senator Perry: Correct. But it's a different law, but in divorce law it tells you that you can only live in this jurisdiction. So, there are situations I think where we do tell people where they've got to stay.
Senator Eckhardt: My concern here is that while you say you take them right to the border but you don't deport them, you are saying if you don't go, no matter where you are, you are illegal.
Senator Perry: Yeah, if you are here illegally in this, in this state, if you crossed illegally, you are illegal in this state.
Senator Eckhardt: Your existence on this side of the river makes you illegal, not your action, but your existence here.
Senator Perry: Correct.
Senator Eckhardt: Thank you for asking, answering my question.
Senator Perry: That didn't change. That's the current law today. Right? If you're illegal, you're illegal. So—
Senator Eckhardt: Actually that isn't the current law.
Senator Perry: —well.
Senator Eckhardt: You are here without documentation.
Senator Perry: Without documentation.
Senator Eckhardt: It is not a criminal offense unless you have been deported previously and you return.
President Pro Tempore: Members, the motion is on adoption of Floor Amendment No. 1. Is there objection? Hearing none, the amendment is adopted. Members, there is an amendment. The following amendment, the Secretary will read the amendment.
(Floor Amendment No. 2)
Secretary of the Senate: Floor Amendment No. 2 by Blanco, et al.
President Pro Tempore: Senator Blanco, you're recognized on Floor Amendment No. 2.
Senator Blanco: Thank you, Mr. President. Members, I'm glad to see that we're protecting kids in the primary and secondary schools. But as you know, children aren't really eligible to be in school until they are about three or four years old, and many of the kids are not eligible for preschool will fall into the childcare facilities. So, according to HHS there are 9,780 licensed childcare centers, and 1,620 licensed childcare homes across Texas. This amendment just clarifies that the same protection afforded to the kids in public schools is extended to the kids not yet eligible for preschool or pre-K who attend a childcare facility. I move adoption.
President Pro Tempore: Senator Perry, you're recognized on Floor Amendment No. 2.
Senator Perry: Members, I appreciate the intended purpose, I think it has lots of issues attached to it, our childcare facilities specifically are overran and underfunded and are struggling. So, I would doubt that it would be practical a problem, but with that in mind there's a whole lot of unanswered questions on this amendment. I move to, I'm sorry, to vote against or to vote against. Yep.
President Pro Tempore: Members, the question is on adoption of Floor Amendment No. 2. The Secretary will call the roll.
(Roll call)
President Pro Tempore: There being 10 ayes, 18 nays, Floor Amendment 2 fails to adopt. Members, there is an amendment. The following amendment, Secretary, read the amendment.
(Floor Amendment No. 3)
Secretary of the Senate: Floor Amendment No. 3 by Hinojosa, et al.
President Pro Tempore: Senator Hinojosa, you are recognized on Floor Amendment No. 3.
Senator Hinojosa: Thank you, Mr. President and Members. This amendment recognizes the importance of creating safe spaces within our communities and ensures that individuals in certain premises will not be arrested or detained under Senate Bill 4. And what this amendment does, it prohibits enforcement in certain locations such as institutions of higher education, places where survivors of sexual assault receive support, and family violence centers. This amendment ensures that many in our communities can be at these locations without fear of being arrested. And I move adoption.
President Pro Tempore: Senator Perry, you're recognized on Floor Amendment No. 3.
Senator Perry: Members, I'm going to oppose the amendment. I think the exemptions outlined in page 1 of the bill pretty much accomplishes everything that's in that list. And with that, I will oppose the bill, I mean, the amendment.
President Pro Tempore: Members, the question is on adoption of Floor Amendment No. 3. The Secretary will call the roll.
(Roll call)
President Pro Tempore: There being 10 ayes, 18 nays, Amendment No. 3 fails to adopt. Members, there is an amendment, following amendment. The Secretary reads the amendment.
(Floor Amendment No. 4)
Secretary of the Senate: Floor Amendment No. 4 by LaMantia, Hinojosa, et al.
President Pro Tempore: Senator Hinojosa, you're recognized on Floor Amendment No. 4.
Senator Hinojosa: Thank you, Mr. President and Members. This amendment only applies to the border area. We have, we have a very unique situation down in the Valley with The University of Texas Rio Grande Valley, university. In Brownsville we have a campus right on the border, and there's a fence, and what this amendment seeks to exempt certain campus police officers from enforcing the provisions of Senate Bill 4. It applies to campus police officers in higher education institutions along the border. The reason it's important is that these higher education officers are not trained but they worked very well with the border patrol and other law enforcement agencies to deal with immigrants that might come across the fence right there on the campus. When they cross the fence, they are walking into the campus itself, and that's a real problem that we have and try to find ways to at least not have the officers, law enforcement that work for the university, be enforcing immigration laws. And I would move adoption.
President Pro Tempore: Senator Perry, you're recognized on Floor Amendment No. 4.
Senator Perry: Yeah, Members, I think that practice that's currently in place sounds like it's working well, will be the same practice after passage of Senate Bill 4. I don't anticipate that that routine would change, and I would hope that it wouldn't, but for that I will be opposing the amendment.
President Pro Tempore: Members, the question is on adoption of Floor Amendment No. 4. The Secretary will call the roll.
(Roll call)
President Pro Tempore: There being 10 ayes and 18 nays, Floor Amendment No. 4 fails to adopt. Members, there is an amendment, the following amendment. The Secretary reads the amendment.
(Floor Amendment No. 5)
Secretary of the Senate: Floor Amendment No. 5 by Blanco, et al.
President Pro Tempore: Senator Blanco, you're recognized on Floor Amendment No. 5.
Senator Blanco: Thank you, Mr. President, Members. This amendment is intended to protect law enforcement officers, members of the public, and the innocent vehicle occupants. There's been a recent surge in high speed pursuits, chases which have caused numerous fa– excuse me, fatalities, and endangered the safety of law enforcement alike. This has raised concerns about public safety, particularly in these border counties. According to DPS, 284 high-speed pursuits have been conducted this year as of mid-October. That's 229 more instances than this time last year. So, acknowledging these increases risks the consequences. The customs and border protection has updated their emergency driving and vehicular pursuit guidelines this year, and this amendment requires the DPS to implement substantially similar policy to those of customs and border protection. This amendment aims to protect law enforcement as well as the public. Just this week in El Paso, we had four fatalities and over a dozen hospitalizations as a result of DPS high-speed pursuits. I move adoption.
President Pro Tempore: Senator Perry, you're recognized on Floor Amendment No. 5.
Senator Perry: Members, I don't think Senate Bill 4 is designed to accommodate that change. It does sound like something the DPS could do on voluntarily, and probably should do. But Senate Bill 4 is not the vehicle to address that issue. But I think it's merited to have a bigger conversation with DPS. I will oppose the amendment based on this isn't the right vehicle for that change.
President Pro Tempore: Members, the question is on the adoption of Floor Amendment No. 5. Secretary, call the roll.
(Roll call)
President Pro Tempore: There being 10 ayes, 18 nays, Floor Amendment No. 5 fails to adopt. Members, there is an amendment, following amendment. The Secretary will read the amendment.
(Floor Amendment No. 6)
Secretary of the Senate: Floor Amendment No. 6 by Menéndez, et al.
President Pro Tempore: Senator Menéndez, you are recognized on Floor Amendment No. 6.
Senator Menéndez: Thank you, Mr. President. Members, this amendment would simply require that interpreter services be available to all officers, employees of the border force, during the border security operations. Members, as you know, most people that will be entering from these different nations, and at a minimum we should be able to effectively communicate with them. And so, you know, if we're truly going to protect people's civil rights and their due process, I think they need to understand what they're being accused of and what the process is. And so, with that, I move adoption of Floor Amendment No. 6.
President Pro Tempore: Senator Perry, you're recognized on Floor Amendment No. 6.
Senator Perry: Yeah, Members, I had this conversation with OCA, and they said that's already basically the process. So, for that, the amendment's not needed and I will oppose it.
President Pro Tempore: Members, the question is on adoption of Floor Amendment No. 6. The Secretary will call the roll.
(Roll call)
President Pro Tempore: There being 10 ayes and 18 nays, Floor Amendment No. 6 fails to adopt. Members, there is amendment, following amendment. Secretary, read the amendment.
(Floor Amendment No. 7)
Secretary of the Senate: Floor Amendment No. 7 by Zaffirini, et al.
President Pro Tempore: Senator Zaffirini, you're recognized on Floor Amendment No. 7.
Senator Zaffirini: Thank you, Mr. President. Mr. President and Members, DPS has investigated last summer's reports regarding the alleged cruel treatment of undocumented persons attempting to cross the border. This amendment is intended to ensure persons subject to enforcement would be treated humanely. Specifically, it would prohibit officers enforcing the law from pushing persons into the water and denying them access to drinking water or urgent medical care. Whether they are adults or children, everyone should be treated humanely regardless of immigration status. Accordingly, I move adoption.
President Pro Tempore: Senator Perry, you're recognized on Floor Amendment No. 7.
Senator Perry: Members, these practices, I don't believe are happening, nor I hope they never do, and I don't think they will. So, for that and that alone it's unneeded, I'll oppose the amendment.
President Pro Tempore: Members, the question is on adoption of Floor Amendment No. 7. Senator Eckhardt, for what purpose do you rise?
Senator Eckhardt: To ask a question of the author of the amendment.
President Pro Tempore: Senator Zaffirini, do you yield?
Senator Zaffirini: I do.
President Pro Tempore: Senator Eckhardt, you are recognized.
Senator Eckhardt: Senator Zaffirini, you had mentioned that your amendment comes out of some disturbing reports that came out of DPS. I believe that those were from Shelby Park, the Shelby Park operations?
Senator Zaffirini: The whistleblower, yes, there was a whistleblower who alleged that this cruel treatment was indeed occurring. And it is being investigated.
Senator Eckhardt: Have you had the opportunity to see the results of that investigation?
Senator Zaffirini: I have not. I have only heard that the investigation is underway.
Senator Eckhardt: And, well, I'll leave it at that, because I also have not seen results of this investigation. However, I have seen the videotape from those Shelby Park incidents, and I hope that all the Members of this body interested in this issue do take the time to ask for all of the complaints, not just the ones that were in the newspaper, and review the videotape from Shelby Park to get a better feel of who is coming across the border and how they are being treated. Many of the officers treat, most of the officers treat those who are crossing with humanity and dignity, but there are clear reports of some very unsavory activity. So, thank you very much for your amendment.
Senator Zaffirini: Thank you, Senator Eckhardt.
President Pro Tempore: Thank you, Senator. Members, the question is on the adoption of Floor Amendment No. 7. Secretary, call the roll.
(Roll call)
President Pro Tempore: Being 10 ayes, 18 nays, Floor Amendment No. 7 fails to adopt. Members, there is an amendment, following amendment. Secretary, read the amendment.
(Floor Amendment No. 8)
Secretary of the Senate: Floor Amendment No. 8 by Hinojosa, et al.
President Pro Tempore: Senator Hinojosa, you're recognized on Floor Amendment No. 8.
Senator Hinojosa: Thank you, Mr. President and Members. One of the concerns that we have with Senate Bill 4 is that many times you'll have a victim of a crime who is undocumented who will be afraid to go to the police and report the crime. Or many times you'll have an undocumented person who witnesses a crime and will be afraid to testify and report to a police officer a crime that was committed. And the reason for that is that they are concerned, they're afraid of being arrested. So, what this amendment does, it states that a peace officer may not arrest or detain a person for an offense under this section if the person came into contact with an officer as a victim of or a witness of an offense or for the purpose of reporting an offense. With that, Mr. President and Members, I move adoption.
President Pro Tempore: Senator Perry, you're recognized on Floor Amendment No. 8.
Senator Perry: Mr. Member, Mr. President, Members, I appreciate the sentiment behind it. We dealt with this issue of victims and their protection when they are a victim status, there is a human trafficking provisions and some of that, that hasn't changed. I think that it's already taken care of, our officers are trained in that regard. I will oppose the amendment.
President Pro Tempore: Members, the question is on adoption of Floor Amendment No. 8. Secretary, call the roll.
(Roll call)
President Pro Tempore: Being 10 ayes and 18 nays, Floor Amendment No. 8 fails to adopt. Members, there is an amendment, the following amendment. Secretary, read the amendment.
(Floor Amendment No. 9)
Secretary of the Senate: Floor Amendment No. 9 by Menéndez, et al.
President Pro Tempore: Senator Menéndez, you are recognized on Floor Amendment No. 9.
Senator Menéndez: Thank you, Mr. President and Members. Members, as mentioned in the last special, we were discussing the fact that we would all do whatever we could to protect our families and our children. Under this amendment, the separation of families would not be allowed under this bill at the border. I have explained earlier in the Q and A, in the layout, that in the month from between July and August of this year alone, there were 51 families who were separated at the border, and there's been some tragic stories. And I think that, especially when people are coming to seek asylum and they're going to seek asylum, it makes no sense whatsoever why would we leave part of the family alone and have the, in most cases it's the father figure in federal custody. So, I would like to see if this amendment would be acceptable to the author and we would stop the separation of family members. So, with that I move adoption of Amendment No. 9.
President Pro Tempore: Senator Perry, you're recognized on Floor Amendment No. 9.
Senator Perry: I understand, I understand the intent behind it. Truthfully, we don't separate mother and children. The male in those family dynamics are a lot of times separated for obvious reasons. And then there's an element of setting that situation up when they're really not a family, but they act as a family. So, puts the DPS in a very weird position, but the male counterpart in that group is being separated but the female and the children are not. With that, I wish it was different, I wish we had a better system of identifying families and non-families, but the risk of public safety has to be in that balance, and today I'll have to oppose that amendment based on that process is currently ongoing.
President Pro Tempore: Members, the question is on adoption of Floor Amendment No. 9. Secretary, call the roll.
(Roll call)
President Pro Tempore: Being 10 ayes, 18 nays, Floor Amendment No. 9 fails to adopt. Members, there is an amendment, the following amendment. Secretary, read the amendment.
(Floor Amendment No. 10)
Secretary of the Senate: Floor Amendment No. 10 by Zaffirini, et al.
President Pro Tempore: Senator Zaffirini, you're recognized on Floor Amendment No. 10.
Senator Zaffirini: Thank you, Mr. President. Mr. President and Members, like my other amendment that I offered, number seven, this amendment is coauthored by Senators Alvarado, Blanco, Eckhardt, Gutierrez, Hinojosa, Johnson, LaMantia, Menéndez, Miles, and Whitmire. Members, profiling is a problem for racial and ethnic minorities that has plagued some of us in our families over the years. This is partly why we are concerned, in fact alarmed, that Senate Bill 4 could exacerbate profiling problems for Americans and legal residents. To address our concern, this amendment would allow a peace officer to arrest someone crossing the border unlawfully only if he or she sees the person crossing. Without this amendment the bill could violate the rights of those who simply look like minorities, speak English with an accent, or aren't carrying proper documentation. This could result in peace officers mistakenly arresting U.S. citizens whom they thought wrongly were unlawful immigrants. Mr. President, I move adoption.
President Pro Tempore: Senator Perry, you're recognized on Floor Amendment No. 10.
Senator Perry: Members, I'll oppose this amendment for all of the debate that we had specifically with Senator Gutierrez. So, I'll oppose the amendment.
President Pro Tempore: Members, the question is on adoption of Floor Amendment No. 10. Secretary, call the roll.
(Roll call)
President Pro Tempore: Ten ayes and 18 nays, Floor Amendment No. 10 fails to adopt. Members, there is an amendment, the following amendment. Secretary, read the amendment.
(Floor Amendment No. 11)
Secretary of the Senate: Floor Amendment No. 11 by Eckhardt, et al.
President Pro Tempore: Senator Eckhardt, you're recognized on Floor Amendment No. 11.
Senator Eckhardt: Thank you so much, Mr. President. This, this bill, since we have identified a number of areas where it is constitutionally vulnerable, shall we say, makes the, those who are actually enforcing this law also constitutionally vulnerable to civil rights challenges and liability. What this amendment seeks to do is to place the burden on the state to indemnify those who are executing this law, whether they are municipal law enforcement, county law enforcement, school law enforcement, or state law enforcement. Under the law as it's written, local governments must indemnify their employees and contractors. Under current law, local government may indemnify. So, this does create a higher burden for local officials. What this amendment seeks to do is simply have the state indemnify these actors, whether they are local government or whether they are state government. And I hope that you will accept it and the Members will also. I take you at your word that you don't want the local governments to absorb the cost of these actions.
President Pro Tempore: Senator Perry, you're recognized on Floor Amendment No. 11.
Senator Perry: So, so, I believe the bill is constitutional based on the fact the state has a right to protect its citizens by creating new offenses, and we have said clearly whatever the burden may be, yet to be determined, will be picked up by the state, and I have to let my word as well as the Members of the Finance and every word of this body that has spoke to this that the state will pick that tab up. So, with that, the amendment's unnecessary, and I will oppose the amendment.
President Pro Tempore: Members, the question is on adoption of Floor Amendment No. 11. The Secretary will call the roll.
(Roll call)
President Pro Tempore: Being 10 ayes and 18 nays, Floor Amendment No. 11 fails to adopt. Members, there is an amendment, the following amendment. The Secretary will read the amendment.
(Floor Amendment No. 12)
Secretary of the Senate: Floor Amendment No. 12 by Menéndez, et al.
President Pro Tempore: Senator Menéndez, you're recognized on Floor Amendment No. 12.
Senator Menéndez: Thank you, Mr. President, Members. This amendment would simply allow a local government to comply with federal immigration law. Members, as we know, the immigration is handled at the federal level and this amendment will ensure that our cities and counties are able to appropriately follow any federal immigration policies. Very simple amendment, we think this amendment might save the bill from its constitutional problems but hope it's acceptable to the author. With that, I move adoption of Floor Amendment No. 12.
President Pro Tempore: Senator Perry, you're recognized on Floor Amendment No. 12.
Senator Perry: I'll oppose the amendment. We changed nothing with respect to the immigration process the federal government currently has nor can they not impose after this bill is filed. So, we intentionally tried to stay out of the immigration realm, we're not deporting people, we have other processes. But this particular amendment is unnecessary because we do not infringe upon the federal government's obligation to enforce immigration. With that I move to oppose.
President Pro Tempore: Members, the question is on adoption of Floor Amendment No. 12. The Secretary will call the roll.
(Roll call)
President Pro Tempore: There being 10 ayes and 18 nays, Floor Amendment 12 fails to adopt. Members, the following amendment, Secretary, read the amendment.
(Floor Amendment No. 13)
Secretary of the Senate: Floor Amendment No. 13 by Eckhardt, et al.
President Pro Tempore: Members, this is the last amendment on the President's desk. The Secretary, excuse me, the Chair recognizes Senator Eckhardt.
Senator Eckhardt: Thank you, Mr. President. As we have discussed previously, and I deeply appreciate you, Senator Perry, saying that you do not want the burden to fall on our local governments and that we anticipate that the large sum of money that has been placed in the hands of the Governor in discretionary dollars will reimburse our counties and our cities to the extent necessary. And I hope that is the case. What this amendment is designed to do is in the event that it is not the case and the operations of this bill do either outstrip the amount of money, the amount of discretionary funds that have been placed in the hands of the Governor or some counties are not treated with the discretion of the Governor's money, so what this bill, what this amendment does is that it requires that the state reimburse counties to the extent that they are holding individuals under Operation Lone Star in their county lockups at a federal standard rate of $102 per day. Now, this only goes to their jail bed day costs. It does not go to their court costs, it does not go to their prosecution costs, it does not go to their pretrial services cost, which will be greater because our pretrial services and our prosecution and defense costs will also have to include a level of immigration expertise, which is, which will add to the cost. So, this only goes to the jail bed day cost, which could run, depending on how you run the numbers, between two billion and 30 billion annually. We simply don't know, but the low end would be two billion, the high end would be 30 billion on an annualized basis. So, I hope that you will accept the amendment. It would only kick in if we are unable to house all these individuals in Operation Lone Star facilities or if a county is not reimbursed with the discretionary money that we placed in the hands of the Governor.
President Pro Tempore: Senator Perry, you're recognized on Floor Amendment No. 13.
Senator Perry: The thing I like about you, and as well as most of the Members, consistency. And even on this issue we agree. I have a promise from this Legislature that we will cover those costs, and I have to go with that. We don't know what they are, but whatever they become, I have a commitment from this Legislature to pay those costs. And I made that commitment to my locals. And, you know, typically when I try, when I say something, I try to make sure it happens. So, I know you will, and I know every one of the Members on this floor will. So, with that, I'll oppose the amendment and appreciate the consistency, and I a hundred percent agree that's not the local cost.
President Pro Tempore: Members, the question is on adoption of Floor Amendment No. 13. The Secretary will call the roll.
(Roll call)
President Pro Tempore: Being 10 ayes and 18 nays, Floor Amendment No. 13 fails to adopt. Senator Perry, you're recognized for a motion to passage to engrossment.
Senator Perry: Move passage to engrossment for Senate Bill 4.
President Pro Tempore: Senator Alvarado, for what purpose?
Senator Alvarado: I have a question for the author.
President Pro Tempore: Senator Perry, do you yield?
Senator Perry: I yield.
President Pro Tempore: Senator Alvarado, you're recognized for a question of the author.
Senator Alvarado: Senator Perry, can you clarify whether SB 4 will apply to individuals who enter Texas between ports of entry prior to the enactment of this bill?
Senator Perry: It would apply in this situation. So, if you are arrested and ultimately prosecuted under a offense of entering the state illegally, you now have a one offense. Right? And if you come back over after you are sent back, you now have committed a second offense. So, I guess the question you're asking is, if you have that first it automatically enhances it, if I'm following what you're asking. I'm not quite sure I am, but what are you asking specifically?
Senator Alvarado: If someone has entered in, entered here between ports prior to the enactment of this bill.
Senator Perry: So, that's the line of questioning that we've had multiple Senators talking about. This bill would only apply if there's confession that I am here illegally.
Senator Alvarado: Okay, but stop at, from this, from this point on—
Senator Perry: From this point on.
Senator Alvarado: —after it's enacted.
Senator Perry: Anybody inside the interior of this state that has entered here illegally that confesses to being here illegally, it could be an offense under this bill. The probable cause aspect of that is something that would have to occur before that individual is. But it could be an offense if there is another offense that brings that into the conversation. And as was discussed, there is federal processes and reliefs that may mitigate, but this bill itself has the state offense of entry and reentry.
Senator Alvarado: Okay. Let me ask the question again. Can you clarify whether or not Senate Bill 4 would apply to individuals who entered Texas between ports of entry prior to the enactment of this bill? Before it becomes law, anyone that entered in?
Senator Perry: Let me ask my legal counsel—
Senator Alvarado: Sure.
Senator Perry: I'm, tell you, yes—
Senator Alvarado: Sure.
Senator Perry: —because we have laws put on the books that are retroactive in application all the time. So, the legal counsel of today that I look to, and I think it's coming from the AG's perspective, there's two-year statute of limitations whether that is interjected in this process or not, but barring a limitation or some other aspect of the law that prohibit, it will apply to those that are interior to this border.
Senator Alvarado: I'm sorry, I didn't get the—
Senator Perry: Yes, that will apply to these people that are currently interior to the border that entered this state illegally from the past, barring some legal, other option or defense that may not be part of this bill. And it will apply, typically, if they either confess that they're here illegally or they are part of an arrest of a different cause and it comes up. But to date, this bill is intended to apply to those people that enter between ports of entry no matter when, if it comes up in a probable cause arrangement or they confess to it, unless there is some other defense that exempts them, as provided in the bill or some other federal statute.
Senator Alvarado: So, it could apply to someone that entered in yesterday, last year, 10 years ago?
Senator Perry: If there's an arrest, if there is an opportunity to arrest, if they saw you or if you're interior and there's probable cause under a different offense or a confession that I'm here illegally, it can apply as—
Senator Alvarado: But if it wasn't a crime when they entered? I'm trying to understand that.
Senator Perry: Well, there's exemptions under the bill. If you came in under the DACA for that window of time, if you came in under asylum, if you're exempted as a worker and you have a visa, that you're here legally. So, there are allowed defenses, affirmative defenses within the bill. If you fit into that, then obviously not.
Senator Alvarado: Okay, well, so given that the Constitution prohibits what I'm going to refer to, which describes what I'm trying to get to, the ex post facto laws, how does Senate Bill 4 reconcile with this, considering it could impose penalties on actions that occurred before it became law, before this bill is enacted?
Senator Perry: The rule that I was given is typically there is a two-year limit of statute of limitations. If that's the law that would apply here, that would be the limit. That's what the legal guys tell me.
Senator Alvarado: Okay. Okay, ex post facto law clause is found in Article 1, Section 9 of the United States Constitution, it prohibits Congress from passing any laws which apply retroactively, making an act illegal after it has been committed or increasing the penalties for a crime after it has been committed. This clause also applies to states via Article 1, Section 10, which specifically prevents states from passing such law. So, how does this bill reconcile that?
Senator Perry: Well, clearly, under your reference to the article for state and federal, may not apply. I'm giving a two-year statute of limitations could apply. All I can tell you is that's what the legal guys are telling me. If that's the case and there's a prohibition, Constitution prohibits you from doing that, then it won't do that. Right? It's not meant to be unconstitutional. So, if it's not allowed under the Constitution today, I didn't change that.
Senator Alvarado: Okay. So, I, well, guessing then there are no provisions within Senate Bill 4 that ensure that it does not operate—
Senator Perry: Illegal entry would not be a crime, but the reentry could be a crime.
Senator Alvarado: Okay. My concern is—
Senator Perry: And it's that aspect of the reentry interior to the border, typically, that's going to probably end that question.
Senator Alvarado: My concern is charging people for a crime that they committed when it was not a crime. That's—
Senator Perry: And I think that's where the reentry provisions of the bill's going to have to address that. And if it's not available under the articles of the Constitution of state and federal, clearly it's not going to be allowed. But the reentry portion of that, obviously if you entered that's not going to be the conversation, it's going to be the reentry. And that's going to come from a different charge and a probable cause, but if the Constitution prohibits it or there's other reasons why it can't apply, then it won't apply.
Senator Alvarado: And someone asked earlier if constitutional lawyers or experts were consulted with when this was being drafted.
Senator Perry: The authors that started this conversation this session had those conversations. I have had those conversations with the AG's office that has defended some of these initiatives. So, those are the folks that have guided some of this conversation.
Senator Alvarado: And I'm not sure, I don't recall if the previous bill that was carried by Senator Birdwell, if it addressed this issue or not. I don't know.
Senator Perry: This, this is my bill. The House had one version; Senator Birdwell had one version. They combined some of the bills. This is the bill that's on the table today.
Senator Alvarado: So, for individuals that, say, came over 10 years ago, they built a life here, they're working and contributing to the economy, what legal protections do they have against retroactive application of the new offenses?
Senator Perry: Any federal protections still are there. If they can, as I think Senator Gutierrez went into the 42 provisions, and those things may apply. If you commit a crime and you enter and you admit, or through that process you are here illegally, reentry may, may, depending on the facts and the discretion of the process of what is or isn't allowable through the articles that we didn't change of the Constitution, may apply. It's the reentry portion of that that's in question.
Senator Alvarado: Well, I'm going to warn you, I think this is a very slippery slope. I think this will be challenged in court. Thank you for taking my questions.
Senator Perry: Thank you.
President Pro Tempore: Members, Senator Perry has moved passage to engrossment. The Secretary will call the roll.
(Roll call)
President Pro Tempore: With 17 ayes and 11 nays, the bill is passed to engrossment. And, Members, we're going to hold there.
(Third Day)
(Remarks on third reading)
President Pro Tempore: Members, we're going to go to final call of messages by the Senators. The Chair recognizes Senator Blanco to speak on final passage of Senate Bill 4.
Senator Blanco: Thank you, Mr. President. Members, I rise to speak against Senate Bill 4. Members, we know why we're here. The federal government is not doing its job. It's not doing enough on the border or enforcement or providing an orderly humane and modern policy, policy that's true to our values, policy that's true to our heritage, and, frankly, policy that's needed for our economy. We know that. We know they're not doing their job, but, Members, the federal government already has an offense for unlawful entry, and that has not deterred desperate migrants who are looking for a better life. And, frankly, no legislation at any level of government is going to dissuade anyone from fleeing persecution, from fleeing poverty, violence. But my fear is, my fear is that these new state offenses are going to have a chilling effect in our state, a state that is minority-majority, 41 percent Latino. I fear for our families and our communities who might suffer the unintended consequences of this bill. And I say that because I know what the author's intent is. Members, we're familiar with Senator Hinojosa's story, how he was wrongfully deported as a child. That child grew up playing football like many Members in this body under those Friday night lights in our state. He enlisted in the U.S. Marine Corps. He fought overseas in Vietnam for our country. He graduated from one of the top universities or one of the top law schools in our country and has had a distinguished career in our Legislature. But what if that child wasn't able to come back home? What if that child was not able to be reunited with his family here in the states? Now we all agree in this Chamber because we know him very well, that our state is better because Chuy is here. But how many kids and adults are we going to risk wrongfully being deported or wrongfully being detained? That's what our families, that's what our communities on the border and across Texas, that's what they're worried about. You know decades ago, migrants used to come to this country through New York City, and they looked at that Statue of Liberty and they would look at that torch on Lady Liberty as a symbol of the American dream. And in El Paso we have this iconic star on our mountain, I'm sure many of you have seen it, and that star lights up our Franklin Mountains. And I think for many Lady Liberty's torch is now that mountain star in El Paso. Since our nation's founding, you know we've been a melting pot for so many different peoples, so many different cultures, traditions, and Texas is no different. In fact, we're as diverse as the six flags that have flown over our great state, from Europeans like the English, the Spaniards, the Asians that came to build our railroads, the Africans who were brought to our state against their will, and everyone in between who pursued the American dream. Migrants have also fought to defend and died for our country's ideals. José Antonio Gutierrez, a Guatemalan immigrant who traversed 2,000 miles on foot at age 17, would later enlist in the United States Marine Corps and reported to be the first U.S. combat death in Operation Iraqi Freedom after we were attacked by terrorists on 9/11. This immigrant who came to our country, enlisted, he fought for democracy, gave his last full measure of devotion to our country, a country he risked everything for because of what we stand for. You know just last session I had the honor and the privilege when this Chamber bestowed the Texas Legislative Medal of Honor to Marcelino Serna, a Mexican immigrant who would become one of the most decorated U.S. soldiers from World War I. Our country is better because of the sacrifices of José Antonio Gutierrez, the sacrifices of Marcelino Serna, and the countless other immigrants who have served our great county in uniform. Countless other immigrants have also built and are currently building our economy, from the farms, the ranch hands who make sure that food is on our table, to the construction workers who are building our homes and our roads, engineers, the teachers, immigrants. And mixed status families have made us stronger in this state and in this country. You know, Members, last week at church we were going through scripture and there was this passage that I thought, I mean, it, just the timing of it and how it resonated. It's Exodus, chapter 22, verse 20, You shall not oppress or afflict a resident alien, for you were once aliens residing in the land of Egypt. You shall not wrong any widow or any orphan. Members, our creator implores us to love our neighbors, love our neighbors as ourselves. Each of us has an immigrant story in this Chamber. An ancestor who made it possible for all of us to be here today as Members of this esteemed body. And I'm so grateful that they did. I'm so grateful that they made it here, because our state wouldn't be the same without each and every single one of you. Thank you, Members. Thank you, Mr. President.
President Pro Tempore: Thank you, Senator. Chair recognizes Senator Zaffirini to speak on the bill.
Senator Zaffirini: Thank you, Mr. President. Mr. President and Members, I rise to speak in opposition to Senate Bill 4 partly because it is patently unconstitutional under the federal Supremacy Clause as clearly established in the U.S. versus Arizona case. Notably, while many have questioned its constitutionality, no constitutional lawyer or immigration practitioner testified to affirm its legality. Senate Bill's 4 attempt to empower state and local law enforcement in immigration matters encroaches on the exclusive federal jurisdiction over immigration policy and law. There's a profound risk of violating due process rights, as the bill would require peace officers to engage in complex legal determinations for which they are not adequately trained. This could lead to the erroneous detention of U.S. citizens and lawful residents, an outcome that is as unconstitutional as it is unconscionable. What's more, the bill's provisions for the arrest and detention of persons seeking asylum or other immigration reliefs are deeply troubling. Under this bill a person seeking asylum could be criminally charged before any humanitarian claims are assessed. A move that could violate international and U.S. asylum laws. The stipulations regarding the removal of persons by judges, which appear to leave no room for discretion, coupled with logistical issues of returning migrants to their countries of origin whether by land or by air pose myriad practical and legal challenges. The bill does not seem to account for the complexities of international law and existing memoranda of understanding with Mexican states. It is not only legally questionable but also poses a significant financial burden on our counties without offering the necessary state support. The creation of new offenses under this bill will inevitably lead to increased incarcerations adding strain to our already stretched criminal justice system. The financial repercussions extend beyond incarceration to include the cost of magistration, confinement, medical expenses, and indigent defense, all of which would be born by counties and ultimately by taxpayers. Neither fully nor partially reimbursed by the state, these costs would be unfunded mandates that counties simply could not afford. Most concerning are the potential consequences for women and children. The bill could lead to the enforcement of penalties against vulnerable groups, including the potential for family separations similar to those seen during the previous administration's zero-tolerance policy. The implications for children whether placed in state foster care or the Office of Refugee and Resettlement facilities are heart-wrenching and could have long lasting traumatic effects. Equally disturbing, the feedback and suggestions of border leaders continue to fall on deaf ears. Previously, I distributed copies of an op-ed by Senators Hinojosa, Blanco, and me. Believe me, we are working on another one. Today I distributed report titled, Common Sense Border Management Solutions, and, Members, you have a copy of this on your desk with a letter written to me by a leading Republican from Laredo, Dennis Nixon. Many of you know him. And he has hosted in Laredo, Lieutenant Governor Dan Patrick, Lieutenant Governor David Dewhurst, Lieutenant Governor Bill Hobby, Governor Bush, and many, many other leading Republicans, including United States Senators. I'm not going to review it, but I hope you will read it. Clearly, for us Senate bill is not only a legal quagmire but also a moral one. Accordingly, I will respectfully vote no on Senate Bill 4, and again, I appreciate all who will do the same. Thank you, Mr. President and Members.
President Pro Tempore: Thank you, Senator. Chair recognizes Senator Eckhardt to speak on the bill. Thank you, Senator. Chair recognizes Senator Birdwell to speak on the bill.
Senator Birdwell: Thank you, Mr. President. Members, let me first express my gratitude to Lieutenant Governor Patrick for the manner in which he has worked with me in over the last two weeks on this issue, and for trusting me with this policy area since 2014. We have in good faith tried to address an emotional and highly charged issue in a bill I believed was not a violation of my oath nor the U.S. Constitution. I offered such a bill six times before this body and a seventh in committee last week. In his capacity as the Presiding Officer, he reassigned the bill from me and the Border Security Committee out of respect for the majority view within the Senate Republican Caucus that wanted to pass a bill and recognizing that my view of my oath and constitutional construct of the relationship between the federal government's specified duties and the state's authority was in the minority view. With that in mind, I respect my colleagues' desire to pass a bill to message our concern to our constituents for the continued unacceptable situation this administration foists upon the nation that Texas unduly bears and offer my compliments to Senator Perry for taking on a tough mission. Members, let us consider carefully our actions. Article 6 of the U.S. Constitution says the Senators and Representative before mentioned and the members of the several state legislatures shall be bound by oath or affirmation to support this Constitution, emphasis, mine is added. The oath that we take that says we will support the U.S. Constitution and the laws of this state is prescribed by Article 6, and that we will bear truth, faith, and allegiance to the same. President Washington in his farewell address asked, Where is the security for property, for reputation, for life if the sense of religious obligation desert the oaths? Even though there are numerous federal officials maliciously violating their oath and the requirement for true faith and allegiance to the same, and I particularly note my belief that the Secretary of Homeland Security and the President himself are in this category, there is no clause in the U.S. Constitution that says the wrong I believe we are about to commit allows us to step outside the bounds of our oath and the text of the Constitution. The oath is not an administrative formality of holding office, as President Washington said, It is a sacred obligation. There is not only a separation of powers among the lateral branches of government, the legislative, executive, and judicial, there is also a vertical separation of powers between federal and state government. The Tenth Amendment to the U.S. Constitution reads, the powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people. The truth of the matter is that Article 1, Section 8 of the U.S. Constitution says that the Congress shall have power to establish a uniform rule of naturalization. That clause specifies all power and responsibilities for immigration is delegated to the federal government. Members, that is why all my attempts to carry this legislation and the bill language therein had the proper federal authority responsible for disposition and deportation of those that we detain. The House has messaged this bill as the strongest border bill, but I believe that belies what is really happening here. For present ease of messaging, we are creating a false expectation of a bill as a solution that is decidedly outside the bounds of the constitutional construct which I have explained. Should the House bring us a bill in the future that is messaged as the strongest law enforcement anti-crime bill, should we pass it even if it contains elements that vacate the Fourth or Fifth Amendments as this one vacates the Tenth Amendment and Article 1, Section 8 of the U.S. Constitution? For the short-term messaging you gain between our two Chambers during this election season, we are setting a terrible precedent for the future by invalidating our obedience and faithfulness to our Constitution. President Biden's failure to obey his oath does not compel us to violate ours. Instead, it compels our federal representatives to constrain him and for the electorate to remove him in the coming year. To close, let me return to President Washington's Farewell Address where he warns of that which we are on the precipice of now doing. He states, If in the opinion of the people the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation, for through this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed. I believe we should heed the warnings of our nation's first President. Thank you Members for your time and attention. Mr. President, I move that my remarks be reduced to writing and entered in the Journal. Thank you, Members.
President Pro Tempore: Members, you heard the motion. Without objection, so ordered. Senator Perry, you're recognized for a motion.
Senator Perry: Thank you, Members. As we hear these type of bills and as much as I hate the fact that we're having these kind of bills and first let me preface, I meant to do it earlier. I appreciate Senator Birdwell and Representative Spiller and all of their efforts and energies that laid a foundation for today. Whether we agree we're at the right outcomes is yet to be decided. Our Constitution's pretty clear we created the federal government, and that is the laws in which we are allowed to be created for our benefit as we did that. It also is very clear what the federal responsibility is. And in that article of Constitution and it's where it gets really kind of wonky because you can take each one and understand the reason behind it. But clearly from my perspective when one side is playing by the rules and other ones not, you don't want to get in the mud with them, but at the same time you have to acknowledge the enemy for what it is. And there was, founders were very smart people. I think God, providential for sure. And they gave us an out as a state when the feds fail to do their responsibility, specifically, Article 1, Section 10, Clause 3, and it's, we're all familiar with one section of that and it's regarding an invasion. I will argue whether I know of an invasion has been properly declared or not is not my concern today. Because if you finish the rest of that sentence in there is an "or" comma "or imminent danger as will not admit a delay." So, whether an invasion has properly been constitutionally declared by this state, this Governor, or this body at some form or fashion, no one can argue on this floor that we are not under imminent threat that cannot stand delay anymore. So, while I agree we are testing and pushing envelopes, the state has every right to protect its citizens and this nation has every right to expect Texas to do that when called to do it. We will see who is right, and it's not a question of I want to be right or not. All I know is, I will go to bed tonight knowing that today, through the civil and the judiciary and the process that is sure to ensue, I have done what I am able to do to protect the citizens of this country and this state for an obligation that is the only thing the feds are supposed to do and that's protect our borders from foreign and domestic enemies. So, with that, with all the respect in the world for all those with differing opinions and my apologies to my Members because there's nothing I hate worse is to have bills that divide the body, but I also know that people understand where both sides are coming from. And it's meant to be the betterment of the, those that we represent in our districts, but those that love this nation and this state and this country. And I know that is the unifying factor and the common denominator, that after this is all done, we will go back into the lounge and talk about life issues that matter. And that's why I respect and appreciate this body. I told a group, I was at an event Tuesday night, and I said I'm dreading Thursday night, not because of the subject matter, not because of the final disposition where this ends up through the process, but because I will divide a group of people that I have ultimate love and respect for. That did not change today. And I hope that's the same for all. We are in a horrible position. Our Constitution provided a way to engage. I believe we have tried to meet civil liberties and processes in order to get us to a point where we can protect our citizens and this nation better and possibly have a conversation that's long overdue. Thank you Members for your consideration. I move final passage of Senate Bill 4.
President Pro Tempore: Senator Perry has moved final passage of Senate Bill 4. Secretary will call the roll.
(Roll call)
President Pro Tempore: There being 17 ayes and 11 nays, Senate Bill 4 is finally passed. Congratulations, Senator.