While the so-called “anti-sanctuary city” Senate Bill 4 legislation has been successfully challenged in pertinent parts in the U.S. District Court, if the Fifth Circuit or Supreme Court ultimately upholds its legality, what would it mean for the state of Texas if it is implemented beyond the real and perceived concerns that it will negatively impact a large number of Texans, including Hispanic and Asian Americans as well as the business community?

In spite of unanimous opposition by Texas Senate and House Democratic members, opposition by police chiefs and sheriffs in most urban areas and numerous protests and lawsuits, SB 4 was enacted and scheduled to go into effect on Sept. 1, 2017, barring court action. The Aug. 9, 2017 decision by U.S. District Judge Sam Sparks of Austin denying Attorney General Ken Paxton's law suit to preemptively declare SB 4 to be constitutional had opened the door for all legal challenges to be consolidated into one case and resolved by U.S. District Judge Orlando Garcia in San Antonio. On Aug. 30, Judge Garcia enjoined a number of major SB 4 provisions. The state of Texas will now appeal the decision to the Fifth Circuit with some likelihood that the District Court decision, if not reversed, will be modified, perhaps significantly.

Senate Bill 4 was promoted by the governor and its other supporters almost entirely to end “sanctuary cities,” to prevent the release of “dangerous criminals” even though prior to completing their sentences, convicted non-citizen violent criminals are placed in deportation/removal proceedings that U.S. Immigration Courts regularly conduct in prisons prior to their release. Furthermore, no one is released from a city or county jail until the charges, mostly involving misdemeanors, are disposed of by a judge or they have made bond. Specifically, §39.07 provides it is a Class A misdemeanor for a police chief or sheriff to knowingly fail to comply with an immigration detainer request issued by Immigration and Customs Enforcement (ICE). Even though there is no federal or legal requirement to do so. The only existing federal mandate set forth at USC §1373 provides that a state or local government entity or official “may not prohibit … any governmental entity of official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual.” In other words, while a city or county may not restrict the exchange of information with the immigration agencies regarding the status of an individual, there is no further federal requirement to otherwise enforce U.S. immigration law or to detain an individual beyond the time they are subject to detention based upon their arrest or conviction. Attorney General Jeff Sessions also concluded on May 22, 2017 that the DOJ's official definition of “sanctuary cities” was limited to jurisdictions that bar officials from communicating with federal authorities on immigration.