Criminal JusticeFederalImmigration & BorderIssuesTexas House Looks to Create Border Protection Unit, Invoke ‘Invasion’ Clause to ‘Deter and Repel’ Illegal Aliens

Speaker Dade Phelan previously promised a border security plan that would challenge federal laws concerning enforcement.
March 13, 2023
Republican lawmakers proposed a series of border security measures on Friday’s bill filing deadline, including a state border protection unit within the Texas Department of Public Safety and special court programs to “handle border-related legal matters.”

Speaker Dade Phelan’s (R-Beaumont) office suggested in a news release that the proposals by Reps. Matt Schaefer (R-Tyler) and Ryan Guillen (R-Rio Grande City) would be at the forefront of the border policy debate this session.

“Addressing our state’s border and humanitarian crisis is a must-pass issue for the Texas House this year, and I thank Representatives Guillen and Schaefer for filing House Bills 7 and 20 respectively, which, when combined, will lead to a safer Texas that overall reduces the cost to taxpayers,” Phelan said.

“Bringing South Texans and others from the border community is an integral part of our process as these two pieces of legislation are considered in our chamber to ensure that their opinions on how to best address the border crisis resonate with the final product.”

Schaefer’s House Bill (HB) 20 would create a “Border Protection Unit” within the Department of Public Safety to “eventually” relieve National Guardsmen and other law enforcement of the border patrol responsibilities they have been performing, Phelan’s office said.

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HB 20 adds language to state law codifying the duty of the State of Texas to secure the border. The governor would appoint a border patrol unit chief who could then hire “law-abiding citizens without a felony conviction” to serve on the state’s border patrol. The bill gives the unit a sunset date of December 31, 2030 and contains strict severability clauses demanding enforcement of the law to the greatest degree possible.

The bill seems to grant a large degree of autonomy to the border protection unit chief, who would report to the Public Safety Commission. However, HB 20 would establish an inspector general’s office to oversee the unit. Those serving in the border protection unit would be “recruited and trained within the border region” to the extent feasible, per the bill.

Schaefer’s bill also references the federal statute that prohibits illegal entry. Throughout the bill, there are statements that any actions the State of Texas takes must be in harmony with U.S. law.

HB 20 invokes the “invasion clause” of the U.S. Constitution, which could foreshadow a legal dispute over whether Texas has the authority to take this route.

Art. I, Sec. 10 of the Constitution reads in Clause 3, “No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.”

Numerous counties have passed their own documents declaring an “invasion” by illegal immigrants.

Under Schaefer’s bill, the border protection unit could “return aliens to Mexico” if they are seen crossing the border unlawfully. The unit could also “deter and repel” them using non-deadly force.

The legislation would create a criminal statute making it a third degree felony to trespass on private property while entering Texas from a “neighboring jurisdiction.” Those arrested on suspicion of violating this statute would likely be subject to electronic monitoring.

HB 20 also proposes a legislative oversight committee to be led by the speaker and the lieutenant governor. The House speaker would appoint four members from the lower chamber while the lieutenant governor would appoint four senators to serve on the committee.

The bill includes a provision outlining a state version of the Title 42 policy that would require the rapid expulsion of illegal immigrants if the federal government declares another COVID-19 emergency or sets vaccination requirements or travel advisories for U.S. citizens.

Guillen’s HB 7 would create “Regional Border Protection Court Programs” and establish educational grants for colleges and universities in proximity to the border, according to Phelan’s office. It would also set up the funding mechanism for the state’s border protection program and provide for “compensation for border property damage victims.”

HB 800, also by Guillen, would increase the mandatory minimum sentences for human smuggling.

“This bold, new approach for securing our border will require us all to come together in the coming weeks to help achieve the goal shared by us all: Keeping Texans safe,” Schaefer and Guillen said in a joint comment.

“Local border communities are on the forefront of this ongoing border and humanitarian crisis and will be involved in making this legislative vision the best it can. We look forward to hearing from these communities and our colleagues in the Texas House to get both House Bills 7 and 20 across the finish line this session so that we can address border security the Texas way.”

Commenting on Schaefer’s bill, the Texas House Democratic Caucus called it “more about politics than about policy” in a statement published on Friday.

“Texans deserve to have solutions created and bills authored by folks whose knowledge of the border goes beyond what’s covered by Tucker Carlson on Fox News,” Rep. Trey Martinez Fischer (D-Dallas) said.

“Instead, the extremist author of this bill likely knows more about the border with Oklahoma than with Mexico, living more than 500 miles away in Tyler.”

Martinez Fischer went on to call HB 20 a “tinderbox waiting to explode” and said “House Republicans have been warned.”

Phelan blessed other border security proposals as well, including HB 6 by Rep. Craig Goldman (R-Fort Worth) to increase the penalty for fentanyl trafficking and HB 90 by Rep. Jared Patterson (R-Frisco) to provide better workers’ compensation for National Guard members. Patterson named his bill after Bishop Evans, the National Guardsman who died attempting to rescue an illegal immigrant drowning in the Rio Grande.

In addition, HB 1600 by Rep. Cole Hefner (R-Mount Pleasant) would make it a third degree felony to enter the U.S. unlawfully between a port of entry, and a second degree felony if the defendant had a prior conviction for the same crime.

In an interview last month, Phelan characterized his forthcoming border plan as “innovative” and said it has the potential to “test … federal laws” concerning illegal immigration.

The speaker called attention to border security when he was reelected on the House floor in January, giving a nod to those who use the word “invasion” to describe the historic increase in illegal border crossings.

There were 2.38 million encounters with illegal aliens during Fiscal Year 2022, and expulsions under Title 42 are set to end in May when the federal government’s COVID-19 emergency measures expire. The number of times border guards stopped illegal immigrants continued to escalate in November and December, but dropped significantly in January.

Sen. Lois Kolkhorst (R-Brenham) filed a piece of legislation, Senate Concurrent Resolution 23, that would declare an invasion on the southern border and urge the federal government to designate drug cartels as foreign terrorist organizations. The resolution says Texas is being invaded by drug traffickers, not all illegal immigrants.

Two years ago, Schaefer delivered gun rights legislation for his caucus, spearheading the successful effort to allow the permitless carry of sidearms in Texas. Meanwhile, Republicans welcomed Guillen with open arms after he left the Democratic Party in 2021.

A copy of Schaefer’s bill can be found below.


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Hayden Sparks

Hayden Sparks is a senior reporter for The Texan and a lifelong resident of the Lone Star State. He has coached competitive speech and debate and has been involved in politics since a young age. One of Hayden's favorite quotes is by Sam Houston: "Texas has yet to learn submission to any oppression, come from what source it may."