By Julian Aguilar, The Texas Tribune
A panel of three appellate judges ruled on Monday that parts of the state’s immigration enforcement legislation, Senate Bill 4, can go into effect while the case plays out on appeal.
Last month, U.S. District Judge Orlando Garcia halted the part of the bill that requires jail officials to honor all detainers.
He also blocked other sections that prohibit local entities from pursuing “a pattern or practice that ‘materially limits’ the enforcement of immigration laws” and another that prohibits “assisting or cooperating” with federal immigration officers as reasonable or necessary.
While a hearing on the state’s appeal of that ruling is scheduled for Nov. 6, a panel of U.S. 5th Circuit Court of Appeals judges ruled Monday that the detainer provision can stand for now.
The panel ruled, however, that based on its interpretation of the law, the part that requires local jails to “comply with, honor and fulfill” detainers does not require detention based on every detainer issued.
“The ‘comply with, honor, and fulfill’ requirement does not require detention pursuant to every ICE detainer request,” the panel wrote.
“Rather, the ‘comply with, honor, and fulfill’ provision mandates that local agencies cooperate according to existing ICE detainer practice and law.”
The court also ruled that jails do not need to comply if a person under a detainer request provides proof of lawful presence.
Travis County Sheriff Sally Hernandez has been in Republican cross hairs since she announced earlier this year that her jail would only comply with detainers on a very limited basis.
As a result Gov. Greg Abbott withheld state grant funds for Travis County programs.
(Texas Governor Greg Abbott slashed more than a million dollars in state grant money to a county after its sheriff vowed to break with immigration enforcement practices. Courtesy of Wochit News and YouTube. Posted on Feb 1, 2017)
But late Monday, Hernandez’ office confirmed it would now comply with all detainer requests.
“Contrary to the state’s position, SB4 is neither clear nor simple,” Hernandez added in a statement.
“The Fifth Circuit and the Trial court have both recognized the complexity of the issues, some of which were conceded by the state.”
“I look forward to further clarification from the courts after oral argument in November.”
Travis County Judge Sarah Eckhardt added: “All cities and counties in Texas, whether or not they are parties to this suit, need guidance from the courts about the boundaries between federal immigration policy, state police powers and the local discretion crucial to the day-to-day pursuit of public safety on our streets and in our neighborhoods.”
The appellate court also ruled that local and college police officers with “authority that may impact immigration” cannot be prevented from assisting federal immigration officers.
It said the state was likely to win those arguments during a subsequent hearing and argued the issue has already been settled in an earlier U.S. Supreme Court decision, Arizona v. United States.
But the 5th Circuit also said that portions of the measure that prevent “materially limiting” cooperation with immigration officials were too vague.
The court held that the word “limit” could be too broadly interpreted and left a decision on that up to the subsequent panel.
The court offered a mixed ruling on another controversial item in the bill, a section of the law that prevents local governments from “adopting, enforcing or endorsing” policies that specifically prohibit or limit enforcement of immigration laws.
The judges kept that injunction in place, but said it only applies to the word “endorse.”
The bill, as passed and signed, would have made elected and appointed officials subject to a fine, jail time and possible removal from office for violating all or parts of the legislation.
Opponents keyed in on the “endorsement” provision as something that would open up most officials to possible fines and jail time.
Texas Attorney General Ken Paxton praised the decision and said his office was confident the entire bill would subsequently be found constitutional.
“We are pleased today’s 5th Circuit ruling will allow Texas to strengthen public safety by implementing the key components of Senate Bill 4,” Paxton said in a statement.
“Enforcing immigration law helps prevent dangerous criminals from being released into Texas communities.”
Democrats said the state was using delay tactics that would disenfranchise Texas’ minorities.
“Texans cannot wait nor afford another round of years-long litigation while this law tears families apart and sows distrust of and confusion among our law enforcement agencies,” said state Rep. Eddie Rodriguez, D-Austin.
“If the court allows the state’s delay tactics to succeed, it will further normalize Texas Republicans’ dysfunctional one-party rule and condemn Texas Latinos to living under a cloud of uncertainty and fear.”