Texas’ Senate Bill 4, the “Show Me Your Papers Law,” is Arguably Unenforceable Under Existing State Law

Here are how things stand right now for the controversial Texas Senate Bill 4 (88-4) (“SB4”), which was passed last fall by both houses of the Texas Legislature and signed into law by Governor Abbott.  You may recognize the new statute by its nickname, the “Show Me Your Papers Law.”   See, e.g., “Texas’s So-Called ‘Show Me Your Papers’ Bill That Would Allow The Detainment, Deportation Of Mexicans Leads To Outrage,” written by Christopher Rhodes and published by Yahoo News on November 3, 2023.

Under state law, SB4 was to be effective and available for state and local authorities to implement on March 5, 2024.  But things are in flux right now: the law flies over the Lone Star State in a holding pattern.

There are lots of challenges to the new statute being advanced based upon federal constitutional arguments.  I’m suggesting there may also be a problem with SB4 based upon state law provisions.

SCOTUS Review in March 2024: Stay of Enforcement

To the surprise of no one, the Supreme Court of the United States (SCOTUS) is involved.  On March 5, 2024, Justice Samuel Alito signed an Order extending a current stay to March 18, 2024, in the pending case of Cause No. 23A815, Las Americas Immigrant Advocacy Center, et al., v. Steven C. McCraw, Director, Texas Department Of Public Safety, et al.  This case is helmed by the American Civil Liberties Union, the ACLU of Texas, and the Texas Civil Rights Project, joined by the United States Department of Justice (consolidated case), in a constitutional challenge to SB4.

• Follow this matter on the SCOTUS Docket here.

Governor Abbott predicted SCOTUS review last month, in a press release where he stated:

“Texas will immediately appeal this decision, and we will not back down in our fight to protect our state—and our nation—from President Biden’s border crisis. The President of the United States has a constitutional duty to enforce federal laws protecting States, including laws already on the books that mandate the detention of illegal immigrants. Texas has the right to defend itself because of President Biden’s ongoing failure to fulfill his duty to protect our state from the invasion at our southern border. Even from the bench, this District Judge acknowledged that this case will ultimately be decided by the U.S. Supreme Court.”

What does the SCOTUS Stay do for SB4?  The High Court has put the new state statute’s effectiveness on hold until it resolves the controversy that has been placed before it.

Here’s the background: first, a federal district court judge down in Austin heard the case and ruled that SB4 “…threatens the fundamental notion that the United States must regulate immigration with one voice.” So, the State of Texas appealed that decision to the U.S. Court of Appeals for the Fifth Circuit.  One day later, the federal appeals court ruled (3-0) that police could start enforcing the “Show Me Your Papers Law” on March 9, 2024.  Read, “Appeals court OKs Texas immigration law to take effect Sunday unless Supreme Court steps in,” written by Hogan Gore and published by the Austin American Statesman on March 4, 2024.

That Fifth Circuit decision was brought to SCOTUS for review, and here we are: a temporary stay of the law’s enforcement while SCOTUS decides things.

New March 2024 Federal Lawsuit Challenging SB4 as Unconstitutional

The pot keeps boiling.  Just this week, a new federal lawsuit was filed in Austin by several non-profit organizations including the Mexican American Legal Defense and Educational Fund (MALDEF) alleging SB4 is unconstitutional because it promotes racial profiling.  It’s not the supremacy clause argument here; instead, this challenge is based upon alleged civil rights violations.

This lawsuit has an alternative constitutional challenge to the case before SCOTUS right now.  As explained in the MALDEF news release, it is “…the first to challenge S.B. 4 filed by individuals personally affected by the law,…” where the plaintiffs allege that “Texas is violating the U.S. Constitution by stepping into the federal role to regulate immigration, and that S.B. 4 also violates the Fourth, Eighth, and Fourteenth Amendments to the Constitution.”

So, as of mid-March, we have two independent federal cases trying to block Texas SB4 from being used by law enforcement.

What is SB4, The “Show Me Your Papers Law”?

What’s all the hubbub about?  Essentially, this new statute is just one more arrow being placed by Texas Governor Greg Abbott into the Operation Lone Star quiver of laws made available to state and local law enforcement to try and stop people from crossing the Mexican border into Texas outside of standard immigration procedures.

Key here is that SB4 is a criminal statute.  Upon conviction of the new “Show Me Your Papers Law,” the individual can serve up to six (6) months in jail as the sentence for committing a Class B misdemeanor.

There’s more.  SB4 also mandates that the sentence include a court order that the individual will be returned to Mexico with local law enforcement having the responsibility of transport.  However, if the person agrees to go back across the border into Mexico under their own steam (voluntarily), then the judge can drop the criminal charges in their entirety.

Also read, “U.S. Supreme Court continues blocking Texas immigration law: Senate Bill 4 would allow Texas police to arrest people suspected of illegally crossing the border,” written by Uriel J. García and William Melhado and published by the Texas Tribune on March 12, 2024.

What About SB4 and State Law: Does SB4 Violate TCCP 14.01 and 14.03?

Right now, there is a great deal of discussion, and much more legal research and advocacy, looking to federal constitutional arguments.  Obviously, there are the widespread concerns that the state statute flies in the face of the supremacy clause.  That’s pretty clear.

However, I would like to bring another argument to the table:  I think SB4 is not enforceable under state law.  

First, let’s look at Texas Code of Criminal Procedure articles 14.01 (entitled Offense Within View) and 14.03 (entitled Authority Of Peace Officers). (“TCCP 14.01” and “TCCP 14.03”).

Warrantless Arrest

These two statutes allow and authorize police officers and others in Texas to make a warrantless arrest.  What is a warrantless arrest?  It is an exception to the standard requirement that a warrant or legal authorization is required before someone’s freedom and privacy can be interfered with by the government.

Under Fourth Amendment protections, an arrest warrant must be obtained as a general rule. The Fourth Amendment of the United States Constitution provides as follows:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

However, SCOTUS has carved out a few exceptions, like exigent circumstances and hot pursuit.  A common example of a warrantless arrest in Texas that meets Fourth Amendment approval is when an arrest takes place in public for violation of a felony criminal statute.   See United States v. Watson, 423 U.S. 411, 418 n. 6, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976).

• For more, read: Exigent Circumstances: What They Are And How They Allow Police To Search And Seize Without A Warrant.

TCCP 14.01, TCCP 14.03, and Warrantless Arrests

TCCP 14.01 is the primary Texas statute that authorizes a warrantless arrest.  The full text provides (emphasis added):

OFFENSE WITHIN VIEW.  (a)  A peace officer or any other person, may, without a warrant, arrest an offender when the offense is committed in his presence or within his view, if the offense is one classed as a felony or as an offense against the public peace.

(b) A peace officer may arrest an offender without a warrant for any offense committed in his presence or within his view.

Notice that TCCP 14.01 only authorizes an officer to make warrantless arrests for offenses “on view” – from the statute: “committed in his presence or within his view….”

TCCP 14.03 also authorizes warrantless arrests by “peace officers,” with a laundry list definition of various law enforcement agents included in this term (e.g., sheriffs; deputies; investigators for district attorneys’ offices; agents for the Texas Alcohol and Beverage Commission; law enforcement officers commissioned by the Texas Parks and Wildlife Commission; etc. ) found in TCCP 2.12.  This statute has various statutory exceptions to needing an arrest warrant here, including things like permissible warrantless arrests in family violence cases (VPO, interference with 911, and assault FV).

SB4 Arrests

The new “Show Me Your Papers Law” creates a criminal offense for those who illegally enter Texas and the United States.  This new statute requires the police officer arrest the suspected person and bring them to a magistrate.  Go here to review the full text of Senate Bill 4.

Thing is: in the scenario of an ordinary encounter or probable cause traffic stop, the officer likely wouldn’t “on view” the illegal entry into the US via the Texas-Mexico border.  Remember, TCCP 14.01 only authorizes warrantless arrests for “on view” offenses: again, from TCCP 14.01: “committed in his presence or within his view….”

Specifically, from TCCP 14.01(b) (emphasis added):

A peace officer may arrest an offender without a warrant for any offense committed in his presence or within his view.

In other words, imagine that SB4 is valid law here in Texas.  A police officer questions a suspect and learns during that dialogue that the person previously entered Texas (and the United States) illegally.

They answer “don’t have any” to the SB4 question “show me your papers.”  I’m proposing that this police officer would need to obtain a probable cause warrant from a judge before making an arrest under the purview of TCCP 14.01 and 14.03.

• Note: for more on probable cause, read The Importance of a Probable Cause Affidavit in Texas Criminal Defense and What is Probable Cause for Police to Arrest in Texas?

Limited Enforcement: Point of Entry into the United States

Accordingly, from my analysis SB4’s illegal entry provision can only be lawfully enforced through warrantless arrests at the point of entry into the US. In that case, the officer would be able to “on view” the crime described in the “Show Me Your Papers Law.”

Once you move away from the border, like here in the North Texas and Dallas-Fort Worth metroplex for instance, then I posit that Senate Bill 4 fails to comport with the limited approval of warrantless arrests found in TCCP 14.01 and 14.03.  There is a need for an arrest warrant.

Bottom line: it seems that this law can only be enforced pursuant to state law at the US/Mexican border, as those arrested are seen crossing the border without legal authority, if law enforcement seeks to make warrantless arrests.

SB 4 Seeks to Enforce Federal Law Prohibiting Illegal Entry into the United States

My position here is that independently of any constitutional arguments advanced based upon the supremacy clause or civil rights violations, there is another challenge to be made against the Show Me Your Papers Law based upon two longstanding provisions of the Texas Code of Criminal Procedure regarding warrantless arrests.

I think my analysis may vitiate the Texas Attorney General’s position that this law doesn’t seek to enforce existing federal law prohibiting illegal entry into the US, as explained by Texas Attorney General Ken Paxton:

SB 4 was adopted to address the ongoing crisis at the southern border, which hurts Texans more than anyone else. SB 4 mirrors federal law making it a crime to illegally enter or reenter the country. It also enables Texas law enforcement to assist federal efforts by detaining and ordering aliens to return to the country from which they illegally entered.

For more on the topic of immigration from a criminal defense perspective, read:

• Are Texas Anti-Smuggling Laws Unconstitutional? Governor Abbott And Texas Penal Code §20.05 And §20.06;
• Alien Smuggling In Texas: Federal Felonies & United States Sentencing Guidelines; and
• Illegal Reentry Into Texas: Crimes Under Federal Statute And Texas Law.

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For more information, check out our web resources, read Michael Lowe’s Case Results, and watch his YouTube video entitled I.C.E. Jail Holds (Texas Immigration Jail Holds):