In early October, Gov. Rick Perry told the Houston Police Officers Union that “…[t]here’s some Texas cities who’ve enacted sanctuary city rules; they’ve basically been handcuffing you from the job you’re sworn to uphold. Well, today I’m announcing my plan to remove those handcuffs on your wrists by making the abolition of our sanctuary city rules an emergency item when our legislature meets this January.” (An “emergency item” is a legislative initiative designated by the governor for immediate consideration by the legislature.)

In his speech, the governor did not define the term “sanctuary city.” There is, in fact, no universally accepted definition, but the term is often defined in one of the following ways:

  • a policy that prevents municipal employees, including peace officers, from enforcing federal immigration laws; or
  • a “don’t ask/don’t tell” policy under which municipal employees are not required to inquire about one’s immigration status.

The governor did not say whether his proposed ban on sanctuaries would extend to the Texas Department of Public Safety (DPS).

On October 15, the governor was interviewed by Evan Smith, editor-in-chief and CEO of the Texas Tribune. Mr. Smith pointed out that DPS has a policy that the department “will not engage in enforcement of federal immigration statutes.” In an attempt to understand what the governor means by “sanctuary city,” Mr. Smith then asked the governor if the DPS policy makes DPS a “sanctuary agency.” The governor did not answer the question directly, nor did he provide any details about the legislation he will seek in January 2011.

Perhaps city officials can get some idea of what’s to come by looking to Tennessee. Last year, that state enacted S.B. 1310, relating to sanctuary cities. That bill provides as follows:

  • No local government (the statute does not apply to the state) may have a policy that limits or prohibits an official or an employee (including a peace officer) from communicating or cooperating with federal officials with regard to the immigration status of any person.
  • A peace officer who has probable cause to believe that an arrestee is not legally within the U.S. shall report the arrestee to the U.S. Immigration and Customs Enforcement (ICE) office.
  • Each local government shall provide notice to its peace officers of their duty to cooperate with state and federal officials with regard to immigration laws. Each local government shall provide written confirmation to the legislature that it has provided such notice and shall annually report to the legislature the number of reports it has made to ICE.
  • A local government that violates the statute shall be ineligible for certain grants.

In Texas, several pre-filed bills would address immigration. (Please see City-Related Bills Filed section in this edition.) Many of those (e.g., H.B. 18, H.B. 113, S.B. 124, and S.B. 126) are essentially identical to the Tennessee law. Only time will tell which, if any, of those bills gains traction in the 2011 session.

In the meantime, no one is certain that sanctuaries exist anywhere in Texas, particularly under a definition that excludes DPS as a sanctuary agency. An Internet search leads to several lists of sanctuary cities, but the lists vary widely and are of little use. What’s more, many Texas localities that have been identified as sanctuaries are active participants in “Secure Communities,” a program through which local police and the federal government identify arrestees who are non-residents and take action against them. For example, while Houston has been alleged by some, to be a sanctuary city, it is a long-time participant in the Secure Communities program. As a result, ICE officials have access to Houston city jails, and non-residents are regularly deported from the city.

One thing is certain. State-mandated immigration policies that are forced on municipal police departments will cost money. Just how much money is unclear, but it is almost a certainty that the state will not provide any funding to support those departments. And how ironic it is that the DPS, a state agency, doesn’t take the lead on the issue.

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