Texas bill would create state-run ‘border protection unit’ as Title 42 ends

A Texas bill creating a state-run “border protection unit” has been brought back to life. 

H.B. 20 would create a state immigration unit to “arrest, apprehend or detain persons crossing the Texas-Mexico border unlawfully” — something that has traditionally been the preserve of the federal government. 

The state-level push comes alongside a broader Republican attack on what they characterize as President Biden’s “open borders policy.” 

While the administration has heavily promoted its new enforcement measures at the border, and the federal Border Patrol reports that encounters with migrants are a quarter below last year, Republicans have described the situation at the border in apocalyptic terms.  

“The brutal reality of Biden’s immigration agenda should shock the conscience of every American,” Texas Attorney General Ken Paxton wrote in a statement on Wednesday.  

Biden’s “policies allow monstrous gang members, terrorists, human traffickers, drug dealers, and violent criminals into our country and demonstrate that the President is willing to sacrifice American lives for his open-borders agenda,” Paxton added. 

Paxton’s comments came just before the expiration Friday night of Title 42, a Trump-era piece of legislation that has been used 2.8 million times since March 2020 to expel asylum-seekers.  

On Thursday, the House of Representatives voted to pass H.B. 2, a sweeping bill that, among a great deal else, makes asylum applications more stringent, restarts construction of the Trump-era border wall and reopens immigration prisons closed by the Biden administration. 

Another clause of the national bill would see unaccompanied minors “safely and expeditiously returned to their country of origin.” 

But with that bill facing near-certain death in the Senate and a Biden veto, Texas is going it alone with H.B. 20, in a move that risks confrontation with the federal government should it pass. 

The bill has immigration advocates seeing a dire threat of their own.  

“House Bill 20 (HB20) is the most dangerous piece of border legislation we’ve seen,” the Texas Civil Rights Project wrote in an April bill summary. 

The Texas bill faces a narrow window to passage. Democrats nearly scuttled it on procedural grounds last week, but Republicans successfully resurrected it this week, The Texas Tribune reported. 

The new unit would be authorized to act only in the overwhelmingly Hispanic counties of the Texas-Mexico border, where they would be allowed “to arrest, apprehend, or detain persons unlawfully crossing the Texas-Mexico border and deter persons attempting to cross the border unlawfully.”

The bill would also give the state new legal powers that prosecutors could use against migrants. It sets up a Texas-only version of Title 42. Also, it makes it a felony crime for anyone to “knowingly” trespass on private land while entering the state — which effectively criminalizes entering the state outside a port of entry, according to the Texas Civil Rights Project. 

This makes an offense that used to be a misdemeanor into a felony on par with kidnapping. 

Bill sponsor state Rep. Matt Schaefer (R) told an Austin Fox affiliate that the state needs H.B. 20 to provide an additional workforce to replace the Texas National Guard units currently at the border under Gov. Greg Abbott’s (R) Operation Lone Star. 

Since 2021, the governor’s office has deployed thousands of military units to the border — a cause to which they aren’t suited, Schaefer said. 

In his interview with Fox, the representative pointed to a video of National Guard soldiers at the border. “That sergeant standing by the river is a diesel mechanic from East Texas. He has to go back to his job, and in fact, the state can only keep him on active duty orders for a certain period of time,” Schaefer said. 

“So we have a temporary workforce that’s applied against a full-time problem.” 

While members of the new state border force would not have to be law officers, the bill gives them access, in the event of a civil lawsuit or criminal prosecution, to “any defense or affirmative defense that applies to a peace officer.” 

That has Texas Democrats worried it could lead to “vigilante” harassment of Latino citizens in Texas border counties.  

It also authorizes these agents to use “non-deadly crowd control measures,” though, in the Fox interview, Schaefer implied they would fire back if threatened. 

“Our officers are gonna be able to protect themselves and have self-defense,” he said. “The Border Protection Unit officers will have the authority to do what they need to do to protect Texas at the river.” 

“What is to prohibit or stop a Border Protection Unit from setting up their post in Hispanic neighborhoods?” asked state Rep. Erin Gámez (D-Brownsville), who represents a city of nearly 200,000 — nearly 90 percent of whom are Hispanic — at the mouth of the Rio Grande. 

Other Democratic legislators echoed those concerns. 

“One of the most concerning provisions overall is the racial profiling that we think is going to happen,” state Rep. Victoria Neave Criado (D) told the House. 

Criado noted that the bill empowers the governor to call out the border patrol unit in the case of “a state of invasion or imminent danger.” 

That’s the same rhetoric, she noted, that the El Paso mass shooter cited in explaining why he massacred 25 people at an El Paso Walmart. 

That “individual from North Texas drove to El Paso because of language like the word ‘invasion,’ where people are painting our communities as invaders of this state,” she said. 

In the April interview, Schaefer dismissed the idea that the unit would be “vigilantes,” saying, “These will be professional state employees under the authority of the Department of Public Safety Commission.”  

He also pushed back on the idea that these units were “death squads.”  

“That’s just someone trying to scare people,” Schaefer said. 

Schaefer conceded that “in some ways, we’re in uncharted territory” concerning the relationship between the Texas and state governments. The Constitution, after all, gives primary responsibility for international borders to the federal government. 

But state conservatives have retrenched around the idea that the constitution “does not thereby strip the states of the power to defend themselves,” Joshua Treviño of the conservative Texas Public Policy Foundation wrote in a public comment supporting the bill. 

“I believe Article One, Section 10 of the U.S. Constitution talks about a state being an imminent danger. And when you have people die, you have women and children being exploited in great numbers — then I believe Texans are in imminent danger, and we need to step up and take a fundamentally bolder approach,” Schaefer told Fox.